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

• Andaloro v. Armstrong World Industries, Inc. (2002). Where the Manville Trust has not settled a plaintiff's claim before a verdict against other joint tortfeasors, the setoff is calculated under the Trust Distribution Process (ten percent of the scheduled disease value) and applied pro tanto, not as a full pro rata share. Asbestos causation requires proof that the plaintiff inhaled some fibers from the defendant's product, not quantified fiber levels.
• Lonasco v. A-Best Products Co. (2000). A plaintiff diagnosed with asbestosis and pleural disease who also has asbestos-related shortness of breath has a symptomatic, compensable condition. A prima facie case against a manufacturer requires evidence that the plaintiff inhaled fibers from its product while working in the vicinity of its use, and a defendant that offers no evidence of the plaintiff's knowledge does not rebut the presumption that he would have heeded a warning.
• Sharpless v. Owens-Corning Fiberglas (1997). In a strict-liability asbestos case, the plaintiff's expert must testify with a reasonable degree of medical certainty that asbestos exposure was a substantial contributing factor to the disease. The relaxed 'increased risk of harm' standard does not apply, and pleural thickening or plaques without a discernible physical symptom, functional impairment or disability is not actionable.
• Blase v. Allied Signal Inc. (1996). Where causation of a disease from asbestos exposure requires expert medical testimony, a plaintiff whose experts are precluded or lack an adequate factual basis cannot show asbestos was a substantial contributing factor, and summary judgment is proper.
• Kirk v. Raymark Industries, Inc. (1995). Forcing a party to use peremptory challenges on jurors who should have been excused for cause impairs its statutory right under 28 U.S.C. § 1870, and that impairment requires reversal without any showing of prejudice. A federal court sitting in diversity may award Pennsylvania Rule 238 delay damages.
• Taliferro v. Johns-Manville Corp. (1992). An expert may rely on epidemiological studies that do not match the plaintiff's exposure or account for smoking, and such gaps go to the weight of the testimony rather than its sufficiency. Asymptomatic pleural thickening may be a compensable injury, and whether it is one is a jury question.
• Lilley v. Johns-Manville Corp. (1991). A plaintiff can show that a defendant's asbestos product caused his disease through direct and circumstantial evidence, including his own and co-workers' testimony, and not only through medical testimony. Pennsylvania law does not require a de minimis exposure instruction.
• Maher v. Wcab (BP Oil Corp.) (1989). Under section 301(c)(2), a claimant need only prove that his disease was caused by exposure to the hazard and that he was exposed after June 30, 1973; he need not prove that post-1973 exposure was itself a causative factor, and a referee cannot find as fact that the disease was caused entirely by earlier exposure.
• Bambrick v. Asten Hill Mfg. Co. et al. (1972). Under the Pennsylvania Occupational Disease Act, compensation is payable only for disability or death caused by asbestosis, not by asbestos exposure generally. Expert testimony that death was due to lung cancer related to asbestos exposure therefore did not support an award.

Rhode Island

• Day v. 3M Company Inc. (2024). Expert opinion based on the 'each and every exposure' theory is scientifically valid and admissible under Rule 702, and the 'frequency, regularity, and proximity' showing goes to a defendant's ultimate liability rather than to admissibility. An expert may not give an opinion that lacks a factual basis, but may rely on record evidence that supports it.
• Day v. 3M Company Inc. (2024). Rhode Island's frequency, regularity and proximity test governs asbestos causation, and it is applied less strictly in mesothelioma cases. Removing an electrical panel is not a 'subsequent alteration or modification' of the product under G.L. 1956 § 9-1-32.
• Sweredoski v. Alfa Laval, Inc. (2017). Under Rhode Island Rule 702, an expert need not hold a particular title or specialty license if his knowledge, skill, experience, training or education can help the fact-finder; a board-certified pathologist with asbestos-disease research and experience may testify on causation of mesothelioma.
• Reera v. AO Smith Corp. (2014). A plaintiff opposing summary judgment in a premises liability asbestos case must produce competent, admissible evidence that asbestos was present and that the plaintiff was exposed to it. A witness's later-acquired belief that insulation contained asbestos, and a promise of expert testimony at trial, do not meet that burden.
• Sweredoski v. Alfa Laval, Inc. (2013). In Rhode Island asbestos cases, causation is judged under the "frequency, regularity, proximity" test. "Each and every exposure" evidence may be presented to show the danger of asbestos but is legally insufficient to prove substantial-factor causation without a showing of frequency, regularity and proximity.
• Brandt v. AW Chesterton Company (2011). A sworn exposure chart of a dying plaintiff is admissible as a dying declaration, and showing work with or near a defendant's asbestos products is enough to reach a jury on product identification at summary judgment.

South Carolina

• Edwards v. Scapa Waycross, Inc. (2024). South Carolina continues to apply the Lohrmann 'frequency, regularity, and proximity' substantial factor test for asbestos causation. A plaintiff must show exposure to the defendant's specific product on a regular basis over an extended period, in proximity to where the plaintiff worked.
• Glenn v. 3M Co. (2023). Expert testimony on cumulative dose is admissible as background medical science, and causation against a defendant is shown by exposure to its product regularly, over an extended period, near where the plaintiff worked. A nonsettling defendant is entitled to a setoff for good-faith settlements for the same injury, so the trial court must review the settlement documents and cannot simply deny a setoff on a claim the plaintiff also released.
• Edwards v. Scapa Waycross, Inc. (2022). Testimony that cumulative asbestos dose raises disease risk is not an 'each and every exposure' theory, and regular handling of asbestos-containing dryer felts supported a jury finding of substantial-factor causation. A nonsettling defendant gets setoff credit but cannot force reallocation of a plaintiff's settlement proceeds, and trust claims are offers to compromise excluded by Rule 408, SCRE.
• Jolly v. General Elec. Co. (2021). Under South Carolina's frequency, regularity and proximity test, regular close-range exposure to a defendant's asbestos gaskets supports a jury finding of substantial-factor causation. Expert testimony that exposures add to cumulative dose is not the unreliable 'each and every exposure' theory. A supplier asserting the sophisticated intermediary defense must show it actually relied on the intermediary to warn.
• Chesher v. 3M Company (2018). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. Without specific causation expert testimony, the plaintiff must present evidence of the amount and duration of asbestos dust exposure, and general allegations of periodic exposure over many years are not enough.
• Haskins v. 3M Company (2017). Under maritime law, a plaintiff must show the defendant's product was a substantial factor in causing the injury, assessed defendant by defendant. An expert opinion that any exposure contributing to cumulative dose is causative, without defendant-specific analysis, is inconsistent with that standard and excludable under Rule 403.

Tennessee

• Coffman v. Armstrong International, Inc. (2019). Daily removal and reinstallation of insulation at an industrial plant is repair or replacement, not construction of an improvement to real property, so the construction repose statute does not apply. Under Tennessee's Satterfield duty analysis, equipment makers can owe a duty to warn about asbestos parts added to their equipment after sale, and Tennessee does not follow the bare-metal defense.
• Payne v. CSX Transportation, Inc. (2015). In a FELA case a jury verdict of negligence per se stands unless the evidentiary and instructional errors were substantial, and FELA bars reducing damages for the employee's contributory negligence where the railroad violated a safety regulation. Experts need not have specific dose information to testify on causation, particularly where the railroad never monitored exposure, and a differential diagnosis is a reliable method.
• Russell v. Illinois Central Railroad Company (2015). Expert causation opinions based on differential diagnosis and a qualitative assessment of workplace exposure can be reliable and admissible even when the dose of the exposure was not quantified. Under 45 U.S.C. § 55 and the railroad health and welfare agreement, a railroad may set off medical benefits the plan paid, even though the employee paid part of the premium.
• US v. Fillers (2012). The nine-level enhancement under USSG § 2Q1.2(b)(2) applies when Clean Air Act asbestos violations made death or serious bodily injury considerably more likely. Actual injury and air samples showing high asbestos levels are not required.
• Lynch v. CF Industries, Inc. (2004). A party claiming workers' compensation death benefits must prove by a preponderance of the evidence, usually through expert medical testimony, that the death was due to a compensable injury or occupational disease; a trial court may credit one expert over another.

Texas

• Burford v. Howmet Aerospace, Inc. (14th District, 2024). Where a defendant was the source of all the asbestos a plaintiff was exposed to and reliable expert testimony shows asbestos exposure is the only possible cause of asbestosis, that is direct, scientifically reliable proof of substantial-factor causation. The plaintiff need not show the exposure more than doubled the risk.
• Neely EX rel. Estate OF Goehring v. Union Carbide Corporation (14th District, 2021). Under Flores and Bostic, a plaintiff must offer reliable, defendant-specific evidence of dose, supported by epidemiology showing the exposure more than doubled the risk, to prove asbestos causation. An expert affidavit with unexplained calculations and studies not shown to match the plaintiff's exposure is unreliable and counts as no evidence.
• Erica P. John Fund, Inc. v. Halliburton Company (2015). At class certification, the defendant bears the burdens of production and persuasion to show a lack of price impact to rebut the Basic presumption of reliance, and the court does not decide as a matter of law whether disclosures were corrective.
• Bostic v. Georgia-Pacific Corp. (2014). The Flores substantial-factor causation standard applies to mesothelioma cases, so proof of 'any exposure' is not enough and the plaintiff must offer some quantification of dose from the defendant's product. Strict but-for causation is not required in multiple-exposure cases. Without direct proof, the plaintiff must show through reliable expert testimony that exposure to the defendant's product more than doubled the risk of disease.
• Union Carbide Corporation v. Synatzske (2014). The Chapter 90 safety valve requires that pulmonary function testing be relevant to the physician's diagnosis of functional pulmonary impairment, so decades-old normal tests do not qualify. Applying that requirement to a claim that accrued before Chapter 90 took effect is not unconstitutionally retroactive, given the compelling public interest and the claimants' lack of settled expectations.
• Hearn v. Snapka (13th District, 2012). A party who offers expert evidence bears the burden of proving it reliable once the other side objects, and a trial court may strike it if that burden is not met. When a summary judgment order does not state its grounds, the appellant must challenge every ground, and an unchallenged ground requires affirmance.
• Union Carbide Corporation v. Synatzske (1st District, 2011). Texas Civil Practice and Remedies Code section 90.010(f)(1)(B)(ii), which requires verification of pulmonary function testing, violates the Texas Constitution's ban on retroactive laws as applied to claimants whose decedent died before Chapter 90 took effect and could not be tested. The court applied the Robinson three-factor test.
• Smith v. Kelly-Moore Paint Company, Inc. (2nd District, 2010). A plaintiff claiming mesothelioma from an asbestos-containing product must meet Borg-Warner's substantial factor test, including evidence of an aggregate dose from the defendant's product and a minimum threshold dose above which mesothelioma risk increases; this applies to chrysotile-only products.
• Exxon Mobil Corporation v. Altimore (14th District, 2008). Exemplary damages require clear and convincing evidence that, viewed objectively from the defendant's standpoint at the time and without hindsight, its conduct posed an extreme degree of risk. General knowledge of asbestos risk to employees was not evidence of knowledge of an extreme risk to employees' family members.
• In re Global Sante FE Corporation (2008). The Jones Act does not preempt Chapter 90's expert-report requirements or its MDL pretrial consolidation, which are procedural and general in nature, but it does preempt the minimal-impairment requirement for silicosis claims and any higher causation standard than the federal one.
• Borg-Warner Corporation v. Flores (2007). A plaintiff claiming asbestosis from a defendant's product must show that the product was a substantial factor in causing the disease. Proof of frequency, regularity and proximity is necessary but not sufficient without defendant-specific evidence of the approximate dose of fibers and that the dose was sufficient to cause the disease.
• Georgia-Pacific Corp. v. Stephens (2007). Under Borg-Warner v. Flores, a plaintiff proves substantial-factor causation in an asbestos case only by showing frequent, regular, proximate exposure to the defendant's product plus reasonable quantitative evidence that the exposure increased his risk of disease. Testimony that any exposure contributes to mesothelioma is not enough.
• Georgia-Pacific Corporation v. Stephens (1st District, 2007). Under Borg-Warner v. Flores, a plaintiff proves substantial-factor causation in an asbestos case only with evidence of frequent, regular, proximate exposure to the defendant's product plus reasonable quantitative evidence that the exposure increased the risk of disease. Expert testimony that any exposure to asbestos contributes to causing mesothelioma is not enough.
• Exxon Mobil Corporation v. Altimore (14th District, 2006). Under Texas foreseeability principles, an employer owes no duty to an employee's spouse for take-home asbestos exposure before the risk was foreseeable; unreliable case reports did not make the risk foreseeable, and the risk became foreseeable to Exxon only in 1972, when OSHA regulations put it on notice.
• Mobil Oil Corp. v. Bailey (9th District, 2006). Under Havner and Robinson, expert testimony that is not scientifically reliable is no evidence. A plaintiff in a toxic tort case must offer reliable evidence of specific causation and must exclude other plausible causes, such as heavy smoking, with reasonable certainty.
• Borg-Warner Corp. v. Flores (13th District, 2004). In an asbestos case, a plaintiff meets the burden on causation with evidence that the defendant supplied any of the asbestos to which he was exposed; the court did not read prior precedent to require separate proof that the product emitted respirable fibers. A manufacturer of asbestos products is held to the knowledge of an expert, which supports a finding of malice.
• In re Roc (4th District, 2004). To survive a no-evidence summary judgment, plaintiffs had to show with reliable evidence that they were exposed to an injurious form of asbestos or silica from the defendants' products and that they were reliably diagnosed. Expert diagnoses that assumed exposure and did not rule out other causes were unreliable and could be excluded.
• Vaughn v. Ford Motor Co. (11th District, 2002). Under Illinois law, a plaintiff must show frequent, regular and proximate exposure to each particular defendant's asbestos product (the Thacker test); without such evidence, directed verdicts for each brake manufacturer are proper, and an erroneous expert exclusion is harmless if the experts' testimony would not bear on that gap.
• North American Refractory Co. v. Easter (13th District, 1999). Third-party eyewitness testimony that a worker was present when a defendant's asbestos products were used is enough evidence of exposure and causation, and the court did not adopt the Lohrmann frequency-regularity-proximity test. Asbestos claims may be consolidated under the Ethyl factors, and the punitive award met the BMW v. Gore due process guideposts.
• Pittsburgh Corning Corp. v. Walters (13th District, 1999). A nonresident plaintiff or survivor may sue in Texas for a wrongful death or personal injury occurring elsewhere under the Texas statute. A party seeking another state's law must file a timely motion that supplies that law. Land-based asbestos exposure during Navy submarine construction is not governed by maritime law.
• Owens-Corning Fiberglas Corp. v. Wasiak (3rd District, 1996). Under Alabama law and due process, repetitive punitive awards in asbestos mass-tort litigation are not invalid merely because the defendant was punished before; the defendant must show the aggregate exceeds punishment commensurate with its entire misconduct, which Owens-Corning did not show.
• Keene Corp. v. Rogers (6th District, 1993). A judge need not be recused merely because his son-in-law, a salaried associate, joined the firm trying the case before him when there is no showing that the relative worked on the case or was substantially affected by its outcome. Erroneously admitted evidence that is merely cumulative of properly admitted evidence is harmless.
• Celotex Corp. v. Tate (13th District, 1990). Where several suppliers' raw asbestos combined to cause a worker's mesothelioma, a defendant shown to have supplied some of it cannot escape liability because other suppliers' asbestos also contributed, and the defendant bears the burden of apportionment. A successor-liability defense is an affirmative defense that must be pleaded, and Texas punitive awards that combine several purposes cannot be reviewed for cumulative-award due process claims absent separate findings.

Utah

• Riegler v. Carlisle Companies, Incorporated (2023). Under Rule 702, a medical expert's specific causation opinion is inadmissible when it rests on an unsupported assumption that exposures to each defendant's products were equal and the expert does not show how he applied his methods. Without expert causation testimony, which Utah law generally requires in such cases, the defendant is entitled to summary judgment.