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.

Washington

• Rublee v. Carrier Corp. (1st Division, 2016). Under Restatement (Second) of Torts § 400, apparent manufacturer liability was assessed from the viewpoint of a reasonable purchaser in the position of the actual purchaser, and the evidence failed under the objective reliance, actual reliance and enterprise liability tests.
• Estenson v. Caterpillar Inc. (1st Division, 2015). An asbestos plaintiff may prove exposure to a defendant's product by direct or circumstantial evidence and need not show inhalation of airborne fibers from that product. Causation may be shown under the substantial factor test, and a large noneconomic award is not shown to be the product of passion or prejudice by its size alone when substantial evidence supports it.
• McCROSSIN v. Imo Industries, Inc. (2015). Under maritime law, a plaintiff can raise a genuine issue of material fact about asbestos exposure with either direct or circumstantial evidence, and expert testimony on exposure can suffice when other record evidence supports it. Here the expert also claimed personal knowledge.
• Ehlert v. Brand Insulations, Inc. (1st Division, 2014). A contractor that installs insulation chosen from the general contractor's list and is merely reimbursed for materials is not a seller engaged in the business of selling under Restatement § 402A, so strict liability does not apply. A trial court does not abuse its discretion by giving a general negligence instruction or excluding newspaper articles not shown to be relevant to the defendant's knowledge.
• Lipson v. ON Marine Services Co. LLC (2014). A motion for reconsideration of an evidence ruling requires manifest error or newly discovered evidence that could not have been found earlier with reasonable diligence. A mistrial does not give a party a chance to relitigate deficiencies identified in the first proceeding.
• Nelson v. Air & Liquid Systems Corporation (2014). Under maritime law, an asbestos plaintiff must show exposure to each defendant's product and that the product was a substantial factor in causing the injury. A manufacturer is not liable for replacement parts it did not place in the stream of commerce.
• Botts v. US (2013). Under the FTCA the Navy is liable only for violating its mandatory asbestos control rules, and under Washington's substantial-factor test the plaintiffs needed evidence beyond speculation that exposure traceable to those violations contributed to the disease.
• Lipson v. ON Marine Services Company, LLC (2013). Under Rule 702 and Daubert, challenges such as dissimilar test conditions, inability to quantify dose or identify a threshold, non-peer-reviewed sources, and lack of direct product evidence go to the weight of expert testimony, not its admissibility, and are for cross-examination.
• Wangen v. AW Chesterton Company (1st Division, 2011). A pump manufacturer is not liable for asbestos in replacement gaskets, packing or insulation it did not manufacture or supply, and the plaintiff must show exposure to asbestos products made or supplied by that defendant. Evidence that the manufacturer specified asbestos parts did not defeat summary judgment where no authority supported liability on that basis.
• Cashman v. Pacific Scientific Company (1st Division, 2010). A party who does not object in the trial court to evidence considered on summary judgment cannot challenge its admissibility on appeal. A manufacturer has no duty to warn about asbestos insulation made by others and added later, and trial courts have broad discretion to choose a spoliation sanction short of dismissal.
• Cashman v. Pacific Scientific Company (1st Division, 2009). A manufacturer owes no common law duty to warn of hazards of replacement asbestos insulation it did not make or supply, and a worker without a proper foundation cannot give opinion that materials contained asbestos; speculative circumstantial evidence of exposure to the defendant's asbestos product does not defeat summary judgment.
• Butler v. Amtico International Inc. (1st Division, 2008). An asbestos plaintiff need only show that the defendant's asbestos-releasing product was in his work environment during the period of cumulative exposure that caused the disease; separate expert testimony that the defendant's product alone was a substantial factor is not required. Reasonable inferences on product exposure are drawn in the nonmovant's favor.
• McPhee v. Ford Motor Company (1st Division, 2006). A party cannot create a genuine issue of fact with an affidavit that contradicts, without explanation, clear earlier deposition testimony, and a conclusory expert declaration without factual support cannot defeat summary judgment on medical causation.
• Moore v. American Honda Motor Co., Inc. (1st Division, 2006). A plaintiff may use direct or circumstantial evidence to identify the maker of asbestos products at a worksite, but a jury may not be left to speculate. A general expert opinion that parts from companies "like" the defendant likely contained asbestos, with no specific link to the defendant's products, does not defeat summary judgment.
• Viereck v. Fibreboard Corp. (1st Division, 1996). The 1981 Washington products liability act does not apply to a mesothelioma claim where substantially all the injury-producing asbestos exposure occurred before the act's effective date, even if the disease was diagnosed afterward. The applicable law is the law in effect when the exposure causing the harm occurred.
• Falk v. Keene Corporation (1st Division, 1989). Design defect claims under Washington's product liability act are governed by the strict liability test of Seattle-First National Bank v. Tabert, not a negligence standard, so a design defect instruction that uses the word "negligence" alongside standard negligence instructions is misleading and prejudicial.
• IN the Matter of Estate OF Foster (1st Division, 1989). Willful violation of a discovery order justifies excluding evidence only if it substantially prejudices the opponent's preparation for trial. RCW 7.72.050(2) gives an absolute defense for compliance with a specific mandatory government contract specification, and that defense is not lost merely because the government consulted the manufacturer about the specification.

West Virginia

• Murphy v. ST. Gobain Ceramics & Plastics, Inc. (2024). A statutory presumption of occupational pneumoconiosis is rebuttable and disappears once contrary evidence is credited; the Occupational Pneumoconiosis Board's finding that occupational disease was not a material contributing cause of death is given great deference and need not identify the actual cause of death.
• Adams v. Consolidated Rail Corp. (2003). Under FELA, a railroad employee's smoking can be raised as contributory or comparative negligence that reduces damages, and a court may exclude smoking evidence where the disease is mesothelioma, which smoking does not bear on.

Wisconsin

• Chapp v. Colgate-Palmolive Company (1st District, 2019). A plaintiff cannot reach a jury on causation when the evidence shows only a possibility that the defendant's product contained asbestos and the probabilities are at best evenly balanced. Physicians who are not qualified to test talc for asbestos cannot serve as a conduit for others' opinions that a talc brand was contaminated.
• Ahnert v. Employers Ins. Co. of Wausau (2018). A motion to reconsider a non-final order is treated under Rule 54(b) and granted only to correct a manifest error of law or fact or to present newly discovered evidence; evidence that was newly created or could have been submitted earlier, and a different judge's contrary ruling in another case, did not meet that standard.
• Kilty v. Weyerhaeuser Co. (2018). Plaintiffs claiming mesothelioma from non-occupational (household or community) exposure must offer evidence from which a jury could find that exposure was a substantial contributing factor. The mere scientific possibility that a small exposure contributes is not enough, and expert opinions resting on unsupported assumed exposures cannot defeat summary judgment.
• Carroll v. John Crane, Inc. (2017). Plaintiffs' expert may say that an asbestos fiber theoretically could cause mesothelioma if the science supports it, but may not suggest that this alone shows liability. Plaintiffs may impeach defendant's experts with extrinsic evidence, with admission of that evidence reserved.
• Carroll v. John Crane, Inc. (2017). Expert opinion that low chrysotile exposure carries little mesothelioma risk is admissible under Rule 702, but an opinion that there is no risk at some exposure level is not. An "every exposure" theory does not show that a product was a substantial contributing factor.
• Pecher v. Owens-Illinois, Inc. (2017). Claims by employees whose asbestos injuries arose from their plant work are barred by Wisconsin's workers' compensation exclusive remedy, and plaintiffs cannot avoid it by recasting the injuries as off-the-job nuisance harms. Product liability does not attach to a patent holder that merely licenses a patent to a manufacturer.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Airborne asbestos released during regular pipe repair and insulation work can be an unsafe condition associated with the structure under Wisconsin's safe place statute, and the statute of repose does not bar the claim unless the defendant shows the work was an improvement to real property.
• Boyer v. Weyerhaeuser Company (2016). A party seeking reconsideration under Rule 59(e) must show newly discovered evidence or a manifest error of law or fact. The rule cannot be used to relitigate old matters, raise arguments that could have been made earlier, or undo procedural failures.
• Boyer v. Weyerhaeuser Company (2016). Plaintiffs claiming non-occupational asbestos exposure need not show it was the main cause, but they need reliable expert evidence of significant non-occupational exposure to show it was a substantial factor. For mesothelioma, living within 1.25 miles of the plant for at least a year could support that opinion.
• Pecher v. Weyerhaeuser Company (2016). Evidence of what the defendant knew or should have known about asbestos hazards is relevant to the nuisance claim, while evidence of occupational exposure and workers' compensation is limited or kept out of the liability phase. General, unspecific requests to exclude expert testimony or untimely evidence are denied without prejudice to specific objections.
• Suoja v. Owens-Illinois, Inc. (2016). Under Wisconsin law, a plaintiff must prove exposure to the defendant's product and that the exposure was a substantial factor in causing the disease. An expert opinion that any exposure, however slight, contributes to cumulative exposure, without addressing dose or comparing it to other exposures, did not carry that burden.
• Calewarts v. CR Meyer & Sons Company (3rd District, 2015). A circuit court's evidentiary rulings in limine are reviewed for erroneous exercise of discretion. Lay witnesses cannot give opinions that insulation contained asbestos, but a party-opponent's employees' statements are not hearsay, and a prior appellate ruling that direct evidence of specific exposures is unnecessary is law of the case.
• Nuutinen v. CBS Corporation (2015). Wisconsin's construction statute of repose does not bar claims against a material producer based on a defect in the material, even when the material was made for a particular project. Claims arising from maintenance work are not improvements to real property and are also outside the statute.
• Spychalla v. Boeing Aerospace Operations Inc. (2015). The court did not decide whether Wisconsin recognizes the bare metal defense. Even assuming it does, it would not apply to makers of completed aircraft and engines when unrebutted expert evidence showed they specified asbestos-containing replacement parts. Issues already decided by the MDL court on product identification and causation would not be reopened.
• Risse v. Building Services Industrial Supply, Inc. (1st District, 2012). To survive summary judgment, a plaintiff must produce evidence showing the worker was probably exposed to the defendant's asbestos-containing product and that the exposure was a substantial factor in the illness; evidence leaving exposure to speculation or conjecture is not enough.
• Anderson v. Combustion Engineering, Inc. (2002). A jury verdict stands if any credible evidence supports it, and the jury may draw reasonable inferences from expert and lay testimony about exposure without expert proof tracing specific fibers to one defendant. A jury's apportionment of fault is not disturbed unless the percentages are grossly disproportionate or the proof so lacking that the verdict is speculation.