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.

Pennsylvania

• Warrington v. 3M Company (2023). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. A bare-metal failure-to-warn claim also requires proof under DeVries that the manufacturer directed or required incorporation of the asbestos part and knew or had reason to know it was dangerous.
• Smeal v. Clark Equipment Company (2022). Under Pennsylvania law, a plaintiff must show frequent, regular and proximate exposure to the defendant's asbestos-containing product and competent expert evidence that the exposure was a substantial factor in causing the disease. A corporate representative's testimony that the defendant's brakes contained asbestos, together with the worker's testimony about handling the brakes and working near brake repairs, created a jury question.
• Smith v. AO Smith Corp. (2022). A purchaser of a corporation's assets is not liable for its debts unless an exception applies; the record here did not meet the de facto merger or mere continuation tests, and a prior case's summary judgment ruling on a different factual record is not binding precedent. Hearsay deposition testimony from an earlier case is inadmissible under the former-testimony exception where the party lacked a similar motive to examine the witness.
• Gay v. AO Smith Corporation (2021). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. A general recollection of a product's name, its presence on a ship, or a generic expert report does not create a genuine dispute on exposure.
• Gay v. AO Smith Corporation (2021). Under Pennsylvania law, a plaintiff must show exposure to the specific defendant's asbestos product with sufficient frequency, regularity and proximity; the product's presence at the workplace, or speculation about earlier exposure, is not enough.
• Blystone v. Owens-Illinois, Inc. (2020). A worker's testimony that he spent full days a few feet from workers scraping asbestos pipe insulation, together with company documents showing asbestos coating use, creates a genuine dispute about exposure. A negligence claim against an employer for a safe workplace does not need expert testimony to establish duty.
• Brandt v. Bon-Ton Stores, Inc. (2020). Under Pa.R.E. 703 an expert may not serve as a mere conduit for another expert's unadmitted testing and opinions. Without admissible exposure evidence, the medical causation opinion lacked foundation and summary judgment was proper.
• Gorton v. Air & Liquid Systems Corporation (2020). Expert testimony that each exposure above background cumulatively contributes to mesothelioma is reliable under Rule 702 and is not the barred 'each and every breath' theory under Pennsylvania law. Disputes over whether exposure met the frequency, regularity and proximity test go to weight and are for the trier of fact.
• Roverano v. John Crane, Inc. (2017). The Fair Share Act applies to strict liability asbestos cases, so a fact-finder must allocate liability among strictly liable tortfeasors in proportion to their liability rather than per capita. Settlements with bankrupt entities may be considered in that allocation because the Act bars use of the allocation against them and so does not conflict with the Bankruptcy Code.
• City of Williamsport v. Workers'compensation Appeal Board (2016). A firefighter's cancer claim under Section 108(r) and 301(f) of the Pennsylvania Workers' Compensation Act requires competent evidence of direct exposure to an IARC Group 1 carcinogen. An expert's opinion on exposure must rest on facts in the record, not on general assumptions about the firefighting profession.
• Rost v. Ford Motor Co. (2016). An expert may tell the jury that every asbestos exposure adds to a person's cumulative dose without offering barred "each and every breath" testimony. Where exposure to the defendant's product was frequent, regular and proximate and competent medical testimony supports substantial-factor causation, the jury decides causation, and the expert need not compare the plaintiff's exposures to other asbestos products.
• Amato v. Bell & Gossett (2015). A psychology expert on memory was properly excluded because jurors can judge the reliability of old or prompted recollections themselves. Settlements by non-parties not found to be joint tortfeasors do not offset a verdict. Tincher applies to failure-to-warn instructions, but Crane was not entitled to its instruction because it argued Cranite posed no risk. Pennsylvania has not adopted the sophisticated user defense. Wrongful death (post-death) and loss of consortium (pre-death) damages are not duplicative.
• Frank v. Honeywell International Inc. (2015). A non-party subpoena may be quashed as unduly burdensome when, even if the material is relevant, the subpoenaing party has not shown a need for it because it already holds the evidence it seeks to use.
• Crawford v. Alcoa (In re Asbestos Products Liability Litigation) (2014). A district court in an asbestos MDL does not abuse its discretion by dismissing a case under Rule 41(b) when the plaintiff fails to submit a medical report meeting the court's AO 12 requirements, even without expressly applying the Poulis factors. Strict compliance with MDL case management orders is especially important.
• Schott v. Viad Corp. (In re Asbestos Products Liability Litigation) (2014). Under maritime law a plaintiff must show exposure to asbestos in a product the defendant made or supplied, and expert speculation that the defendant probably supplied original or replacement parts is not enough. A manufacturer is not liable for asbestos parts it did not make or supply.
• Nelson v. Airco Welders Supply (2014). Expert causation testimony resting on the 'any-exposure' theory is inadmissible under Betz v. Pneumo Abex, and plaintiff's counsel may not give the jury a formula or amount for non-economic damages. Strict liability, including failure to warn, is limited to a product's intended use by an intended user, and intended use includes the intermediate steps needed to fulfill the product's purpose.
• Rost v. Ford Motor Company (2014). Betz v. Pneumo Abex does not bar all 'any exposure' expert opinion, and on review of a post-trial motion for judgment as a matter of law the record is viewed in the verdict winner's favor. Under Moore v. Ericsson, an asbestos-containing product may be treated as defective as a matter of law because it contains asbestos.
• Howard v. AW Chesterton Co. (2013). In dose-responsive diseases, the any-exposure theory (each and every exposure is a substantial cause) cannot establish substantial-factor causation, and bare de minimis exposure is insufficient; experts must make an individualized assessment of exposure history, and summary judgment is available in such cases.
• Nelson v. Airco Welders Supply (2013). Following Betz v. Pneumo Abex, expert testimony that each and every asbestos exposure is a substantial contributing factor to mesothelioma is inadmissible. Plaintiff's counsel also may not suggest a specific dollar value for non-economic damages, and the instructions here did not cure that suggestion.
• Betz v. Pneumo Abex LLC (2012). A Frye hearing is warranted when a trial judge has articulable grounds to believe an expert did not apply accepted scientific methodology in a conventional way, and the 'any-exposure' opinion that every fiber is a substantial contributing factor conflicts with dose-response science and the substantial-factor standard, so excluding it was not an abuse of discretion.
• Fisher v. Sexauer (2012). To survive summary judgment, a plaintiff must show frequent, regular exposure in proximity to the defendant's asbestos product. The relaxed exposure standard for mesothelioma does not extend to other diagnoses such as small-cell carcinoma.
• Rabovsky v. Goulds Pumps (In re Asbestos Products Liability Litigation (NO. VI)) (2012). Under Rule 702 and Daubert, an expert's opinion that each and every exposure to asbestos above background contributes to mesothelioma is sufficiently reliable to be admitted. Lack of specific testing goes to cross-examination, and Pennsylvania's substantial factor test is not about the quantity of the agent.
• Millsaps v. Aluminum Company of America (2012). The consulting-expert protection of Rule 26(b)(4)(D) does not bar deposing a witness who has relevant knowledge outside his consulting role, and objections to protected information can be raised during the deposition. Overlap with a corporate designee deposition does not bar it, though duplication can be managed by sequencing.
• Rabovsky v. Air & Liquid Systems Corp. (2012). A defendant waives the defense of insufficient process by failing to raise it by pre-answer motion or in its answer, and Gregg's frequency, regularity and proximity test does not bar expert 'each and every exposure' opinions on mesothelioma causation under Rule 702.
• Howard v. AW Chesterton Co. (2011). The frequency, regularity and proximity test is not rigid and must be adapted to the case, including diseases like mesothelioma that can follow minor exposures. At summary judgment a court must view the evidence favorably to the non-moving party and may not treat testimony about no visible dust as an admission of no inhaled fibers or settle credibility disputes against the plaintiff.
• Anderson v. Salmon Bay and Gravel Co. (In re Asbestos Products Liability Litigation) (2011). An expert's opinion that every occupational and bystander asbestos exposure above background was a substantial contributing factor in causing mesothelioma may be admitted under Rule 702 when supported by published studies and agency statements. Disputes over the underlying facts, such as fiber type, go to cross-examination and the jury.
• Taylor v. Alcatel Lucent USA (In re Asbestos Products Liability Litigation) (2011). A party may object to a request for admission that is vague or calls for a medical opinion, and need not answer until the court rules on the objection. Supplemental expert declarations that add no new substantive opinions may be allowed despite timing objections.
• Wingfield v. John Crane (In re Asbestos Products Liability Litigation (NO. VI)) (2011). Under Federal Rule of Evidence 804(b)(1), a deceased witness's deposition is not admissible as former testimony unless the opposing party had a meaningful opportunity to cross-examine; defendants who could not meaningfully cross-examine a gravely ill deponent did not have that opportunity.
• Breedlove v. CSX Transportation (In re Liability Litigation) (2011). An expert may rely on exposure summaries and deposition excerpts prepared by plaintiff's counsel if they have a factual foundation in the record, and weaknesses go to cross-examination. HIPAA does not bar asking a non-covered-entity defendant about asbestos claims that non-parties have brought in litigation.
• In re Pittsburgh Corning Corporation (2011). A § 524(g) channeling injunction may protect non-debtor affiliates only for claims derivative of the debtor, and the plan must define its scope clearly. Insurance neutrality language must follow Combustion Engineering without ambiguous qualifications.
• Willis v. BW IP International Inc. (2011). To win summary judgment on the government contractor defense, a defendant must show no genuine factual dispute on all three Boyle elements, including that the government approved reasonably precise specifications reflecting considered judgment about warnings. Conflicting evidence on those points precludes summary judgment.
• Betz v. Pneumo Abex LLC (2010). A Frye challenge requires the trial court first to find that the challenged evidence is novel scientific evidence and then to decide whether its methodology is generally accepted. A trial court may not exclude causation testimony on scientific theories the parties never raised and no expert supported, and extrapolation from higher to lower doses and the absence of supporting epidemiology do not by themselves defeat general acceptance.
• Faddish v. General Electric Co. (2010). The government contractor defense applies to failure-to-warn claims. A contractor need not show the government expressly prohibited warnings; it must show the government exercised discretion over warnings, the contractor complied, and the government knew as much or more about the hazards.
• Faddish v. Warren Pumps, LLC (2010). Under Florida law, a plaintiff must show the defendant's product was a substantial contributing factor to the injury; testimony of the worker combined with expert testimony about asbestos packing and gaskets on the defendant's pumps was enough to raise a genuine factual issue.
• Travis v. Globe Mfg. Co. (In re Asbestos Products Liability Litigation) (2010). Under New York law, a plaintiff must produce evidence that he was exposed to the specific defendant's asbestos-containing product and that the exposure was a substantial factor in causing his injury; speculation that he wore a fire suit made with asbestos material is not enough.
• Larson v. Georgia Pacific (In re Asbestos Products Liability Litigation) (2010). A magistrate judge's expert-admissibility ruling is reviewed for clear error. An expert need not rely on epidemiological studies or rule out every alternative cause for the testimony to be reliable under Rule 702; those points go to weight.
• Larson v. Georgia Pacific (In re Asbestos Products Liability Litigation) (2010). Expert testimony is admissible under Rule 702 if the expert's method is reliable and fits the case; disagreement among experts or the existence of contrary studies goes to weight and credibility for the jury, not admissibility. Epidemiology is not always required, and differential diagnosis is an accepted method.
• JM Manufacturing/formosa Plastics Corporation v. Workers'compensation Appeal Board (2010). Under Gibson, a witness's testimony that a workplace item contained asbestos must rest on personal knowledge or specialized knowledge, not on what others said; without first-hand evidence of asbestos at the workplace, an occupational disease claim under Section 301(c)(2) fails.
• Moore v. Ericsson, Inc. (2010). A plaintiff shows asbestos product exposure through evidence of regular, frequent and proximate exposure (the Gregg test), which is applied less rigidly for mesothelioma. In strict liability cases, liability is shared equally among joint tortfeasors, and a nonsettling defendant is also liable for any shortfall between a settling defendant's share and its pro tanto settlement.
• Peter & Elpis Constantinides v. Leslie Controls, Inc. (2010). Evidence that Leslie valves were among only two valve types in the boiler room, were specified for asbestos gaskets, packing and insulation, and were likely worked on near the plaintiff raised a genuine fact issue on causation. The unsettled Florida law on the bare-metal defense was left to the transferor court.
• Peter & Elpis Constantinides v. Leslie Controls, Inc. (2010). Expert and co-worker testimony that Leslie valves were in the boiler room, used asbestos gaskets, packing and insulation, and were worked on near the plaintiff raised a genuine fact issue on causation. Whether a Florida component maker is liable for asbestos added by others was left for the transferor court.
• Summers v. Certainteed Corp. (2010). A plaintiff survives summary judgment when a sufficiently supported expert opinion attributes his condition to both asbestos and non-asbestos causes, because competing medical evidence on causation is for the jury. An appellate court reviewing summary judgment must apply de novo review to the question whether any genuine issue of material fact exists.
• Estate of Hicks v. Dana Companies, LLC (2009). Under Gregg's flexible frequency, regularity and proximity test, forty years of direct exposure to a defendant's asbestos gaskets and packing, with expert testimony that cumulative low-dose exposure contributed to mesothelioma, was enough for the jury, and conflicting expert opinion on dose did not support JNOV. OSHA and EPA exposure standards are inadmissible in a Pennsylvania strict liability case to show lack of defect, or lack of causation, because they inject negligence concepts.
• Gregg v. VJ Auto Parts Co. (2009). At summary judgment, courts apply the frequency, regularity and proximity factors in an evaluative way (the Tragarz approach) to decide whether a jury could infer that the defendant's product caused the harm. Generalized expert opinions do not create a jury question where exposure to the defendant's product is minimal.
• In re Asbestos Products Liability Litigation (2009). Physicians whose screening diagnoses plaintiffs rely on in asbestos litigation are not covered by HIPAA, cannot claim physician-patient privilege or consulting-expert protection, but subpoenas to them may be narrowed as overbroad and burdensome.
• Donoughe v. Lincoln Elec. Co. (2007). A plaintiff may prove inhalation of asbestos from a defendant's product through lay and circumstantial evidence, and the jury may reject defense experts' testimony that the product released no respirable fibers. Absent a stated intention otherwise, a release of one joint tortfeasor, including the Manville Trust, is applied pro tanto against the remaining tortfeasors.
• Gregg v. VJ Auto Parts Company (Eastern District, 2007). At summary judgment, courts may assess the frequency, regularity and proximity of the claimed exposure, applied flexibly, whether the exposure evidence is direct or circumstantial. Generalized expert opinions that any exposure is a substantial factor do not create a jury question where exposure to the defendant's product is minimal.
• Summers v. Certainteed Corp. (2005). Under the Giffear/Simmons line and Quate, asymptomatic asbestos-related changes are not a compensable injury, and a plaintiff cannot recover where other conditions such as smoking-related lung disease make it impossible to tie shortness of breath or impairment to asbestos. The affirmance rests on an evenly divided court.
• Gibson v. Workers'compensation Appeal Board (Western District, 2004). The rules of evidence on personal knowledge and lay opinion (Pa.R.E. 602, 701, 702) apply in workers' compensation proceedings. A lay witness who has no personal knowledge or specialized training cannot identify a workplace substance as asbestos, and without that testimony the record lacks substantial evidence of asbestos exposure.
• Smalls v. Pittsburgh-Corning Corp. (2004). Evidence of a later product warning is admissible to impeach a defendant's claim that its product created no dust, and an expert's 'each and every breath' causation opinion is admissible; a verdict unsupported by the evidence of injury and loss of consortium is excessive and warrants a new trial on damages.