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.

California

• Botts v. US (2016). Under Washington law, expert testimony that asbestos fibers disperse across a whole shipyard can support an inference that a person working there breathed asbestos, so evidence of Navy rule violations, shipyard-wide exposure and a multi-year exposure period was enough for a factfinder to find causation.
• Casey v. Kaiser Gypsum Co. Inc. (1st Appellate District, 4th Division, 2016). A trial court may order a retrial limited to malice and punitive damages before a new jury after the first jury deadlocks on malice, and Civil Code section 3295(d)'s 'same trier of fact' language does not forbid this. Punitive damages must also satisfy due process limits, which here required reducing the award to a 2.5-to-1 ratio against Kaiser Gypsum's share of compensatory damages.
• Davis v. Honeywell International Inc. (2nd Appellate District, 4th Division, 2016). Under Sargon, a trial court may admit expert testimony that each asbestos exposure contributed to the risk of mesothelioma, because the court does not resolve scientific disputes and Rutherford does not require a dose estimate. A jury instructed in line with Rutherford's substantial-factor standard (CACI No. 435) need not also receive a list of exposure factors.
• Gerlach v. Goodman Lumber Company (1st Appellate District, 1st Division, 2016). An expert may rely on otherwise inadmissible hearsay of a type experts reasonably rely on, so an industrial hygienist's declaration on asbestos content had adequate foundation. With the plaintiff's testimony about buying joint compound from the defendant, it raised a triable issue of exposure.
• O'leary v. Dillingham Construction NA, Inc. (1st Appellate District, 1st Division, 2016). An expert opinion based on an eyewitness description of the material and the expert's knowledge of insulation in use at the time is not speculative or lacking in foundation. A party opposing summary judgment need not give the level of explanation required of the moving party's expert.
• Untermann v. D. Zelinsky & Sons, Inc. (1st Appellate District, 4th Division, 2016). A defendant can shift the burden on summary judgment by showing the plaintiff cannot identify asbestos-containing materials tied to the defendant's activities. The plaintiff then needs admissible evidence of exposure, and an expert opinion lacking foundation about the specific products may be excluded without abuse of discretion.
• Walashek v. Air Liquid Systems Corporation (2016). Expert testimony diagnosing mesothelioma and opining that significant asbestos exposures were substantial factors in causing it is admissible under Rule 702 and Daubert when based on reliable methods. Disagreements over how to read test results, the facts underlying the opinion, or the lack of a defined exposure threshold go to weight, not admissibility.
• Casey v. Dynalectric Company (1st Appellate District, 3rd Division, 2015). State industrial dust safety orders establish a duty to use reasonable care to avoid exposing others to significant levels of industrial dust, whether or not the defendant knew or should have known the dust contained asbestos.
• Green v. CertainTEED Corporation (1st Appellate District, 3rd Division, 2015). Under California's governmental interest test, Texas law governs claims against defendants whose products or facilities exposed a Texas resident in Texas, even if other law applies to other defendants. Texas law requires proof that the exposure exceeded a harm-inducing threshold, and an 'any exposure' opinion does not meet that standard.
• Kelly v. CBS Corporation (2015). Defendants may not base a sophisticated user defense on the Navy's knowledge imputed to the plaintiff; they must show that the plaintiff himself received information that made him know, or should have made him know, of the asbestos dangers.
• Leidig v. Zenith Electronics LLC (2nd Appellate District, 4th Division, 2015). A plaintiff opposing summary judgment must offer admissible evidence that the decedent was exposed to asbestos in the defendant's product. Lay witnesses and an unqualified expert cannot identify a material as asbestos, and speculation that a product might have contained asbestos does not raise a triable issue.
• Marteney v. Union Carbide Corp. (2nd Appellate District, 4th Division, 2015). Under Rutherford, a plaintiff shows causation by evidence that exposure to the defendant's asbestos was a substantial factor contributing to the risk of cancer, and the whole trial record, including defense experts' testimony, can supply that proof. Findings that warnings were adequate do not bar a consumer-expectations design-defect claim against a raw asbestos supplier.
• Quiroz v. BNSF Railway Company (2nd Appellate District, 4th Division, 2015). In asbestos litigation the plaintiff must first show threshold exposure to asbestos. A defendant can shift the burden on summary judgment by showing through factually devoid discovery responses that the plaintiff cannot prove exposure, and an expert opinion with no factual basis that the materials contained asbestos cannot create a triable issue.
• Shiffer v. CBS Corporation (1st Appellate District, 1st Division, 2015). A plaintiff must produce evidence of actual exposure to the defendant's asbestos-containing product, and mere presence at a site is not enough. Expert opinions resting on an incomplete factual record cannot supply that evidence. Belated expert opinions based on evidence available before the summary judgment hearing are not new evidence for reconsideration or a new trial.
• Ganoe v. Metalclad Insulation Corporation (2nd Appellate District, 3rd Division, 2014). A defendant does not shift the summary judgment burden merely by pointing to a witness's failure to recall its name or to factually devoid discovery responses that the plaintiff has since amended with specific facts; circumstantial evidence and expert opinion tying the defendant's work to the decedent's exposure can raise a triable issue on causation.
• Hellam v. Crane Co. (1st Appellate District, 4th Division, 2014). Evidence that asbestos products routinely emitted respirable fibers in ordinary use supports a design defect under the consumer expectations test, and evidence that each exposure increased the risk of mesothelioma supports substantial-factor causation. A judgment is final and appealable even if settlement credits have not yet been applied.
• Lovelace v. Elementis Chemicals, Inc. (3rd Appellate District, 2014). An appellate court will not reverse unless the appellant shows prejudicial error; where the appellant does not challenge an independent ground supporting the judgment (exclusion of evidence for lack of authentication), the judgment must be affirmed even if other evidentiary arguments had merit.
• Paulus v. Crane Co. (2nd Appellate District, 3rd Division, 2014). Expert testimony read in context, together with other evidence of frequent and repeated exposure, can support a finding that a defendant's own asbestos products were a substantial factor in increasing the risk of mesothelioma. A defendant gets no setoff for speculative future bankruptcy trust recoveries, because the statutory setoff applies only to settlements made before verdict or judgment.
• Sclafani v. Air & Liquid Systems Corp. (2014). Under California's Rutherford standard, a plaintiff must show through competent expert testimony, in reasonable medical probability, that exposure to the particular defendant's asbestos product contributed to the risk of cancer. An inadmissible 'every exposure' opinion and speculative evidence of the frequency, regularity and proximity of exposure do not meet that standard.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in the aggregate dose causing disease; equivocal product-identification testimony and evidence of corporate knowledge of asbestos hazards create fact disputes that preclude summary judgment, including on punitive damages.
• Hernandez v. Amcord, Inc. (2nd Appellate District, 2nd Division, 2013). Under Rutherford, a plaintiff need not have an M.D. recite that the defendant's product caused the disease. Evidence of threshold exposure, an epidemiologist's testimony on cumulative exposure, and a physician's opinion that asbestos caused the mesothelioma can show the product was a substantial factor contributing to the risk of cancer. The Noerr-Pennington doctrine is a rule of substantive liability, not a rule of evidence, so it does not bar evidence of lobbying.
• Keeney v. AW Chesterton Company (2nd Appellate District, 4th Division, 2013). A jury's apportionment of fault is upheld if any evidence under a reasonable view supports it, and the appellant must set out all material evidence. A party lacks standing to assert a privilege held by the Navy or another public entity.
• Scott v. Lennar Corporation (1st Appellate District, 2nd Division, 2013). In a toxic tort case, a plaintiff must prove exposure and causation within reasonable medical probability through competent expert testimony. When defendants' expert declarations negate causation, plaintiffs who offer no expert evidence of their own cannot avoid summary judgment.
• Steiner v. Volkswagen Group OF America, Inc. (2nd Appellate District, 6th Division, 2013). A trial court has discretion to limit an expert's recitation of hearsay literature on direct examination. Under Evidence Code section 721(b)(1), cross-examination on a publication requires a showing that the expert referred to, considered or relied on it, and mere familiarity is not enough. A trial court may find a defendant's token section 998 offer unreasonable and strike its expert fees.
• Strickland v. Union Carbide Corp. (2nd Appellate District, 7th Division, 2013). Under Rutherford, a plaintiff shows causation by proving threshold exposure to the defendant's product and expert testimony that the product can cause the cancer and that cumulative asbestos exposure contributed to the disease. Testimony isolating the defendant's product alone is not required.
• Bankhead v. Pneumo Abex LLC (1st Appellate District, 4th Division, 2012). A defendant that stonewalls discovery on its financial condition cannot complain about the exclusion of its unverified financial statement. Indemnity evidence admitted for a limited purpose, even if erroneous, does not require reversal when substantial evidence of the defendant's own wealth supports the punitive award.
• Casey v. Perini Corporation (1st Appellate District, 4th Division, 2012). An expert opinion that assumes asbestos was present, based only on general OSHA presumptions with no factual support for the specific jobsites, lacks foundation and may be excluded. Speculation or the mere possibility of exposure to asbestos attributable to the defendant does not create a triable issue of fact.
• Cundiff v. Lone Star Industries, Inc. (2nd Appellate District, 2nd Division, 2012). A defendant asserting the federal enclave defense bears the burden of proving the plaintiff's exposures occurred within the enclave, including the specific location of the injury. Fault allocation and noneconomic damages are upheld if supported by substantial evidence and not shocking to the conscience.
• Adams v. Ford Motor Company (2nd Appellate District, 1st Division, 2011). A prevailing defendant's section 998 offer is presumed reasonable when it wins a more favorable judgment. The trial court has discretion to award expert fees incurred before or after the offer, and the party challenging the costs must show they were unreasonable or unnecessary.
• Fontes v. Interstate Brands Corporation (2nd Appellate District, 5th Division, 2011). A defendant can shift the burden on summary judgment by showing through discovery responses and deposition testimony that plaintiffs cannot prove asbestos was present at the work site. An expert declaration lacking foundation for that point is properly excluded, and a new trial motion based on excluded expert opinions fails because the evidence is not material.
• Webster v. Exxonmobil Oil Corp. (2nd Appellate District, 4th Division, 2011). Trial testimony that contradicts clear admissions in a party's deposition is not substantial evidence, so it cannot defeat a nonsuit; without evidence of exposure there is no causation.
• Teruel-Armstrong v. Borg-Warner Morsetec, Inc. (2nd Appellate District, 3rd Division, 2010). A court may impose an evidence sanction for a third-party deponent's failure to produce subpoenaed documents only if a discovery statute authorizes it or, under inherent authority, the misconduct is egregious. Neither was shown here.
• Whitmire v. Ingersoll-Rand Company (2nd Appellate District, 4th Division, 2010). A plaintiff must show with admissible evidence that he was exposed to the defendant's asbestos with enough frequency and regularity to be a substantial factor in causing his disease; a party cannot create a triable issue with a declaration that contradicts his earlier discovery responses without explanation, and mere possibility of exposure is insufficient.
• Mahoney v. Georgia-Pacific, LLC (1st Appellate District, 1st Division, 2009). Under Rutherford, an asbestos plaintiff need not quantify dose; evidence of repeated, close exposure to a dusty product, plus expert testimony of substantial contribution to risk, supports causation. A trial court may grant a new trial limited to medical expenses when noneconomic damages are separable from them.
• Short v. Sequoia Ventures, Inc. (1st Appellate District, 3rd Division, 2009). A plaintiff claiming negligent design or construction of a complex facility generally must offer expert evidence of the standard of care and the defendant's deviation from it, and a declaration that does not address the standard of care does not suffice.
• Cadlo v. Metalclad Insulation (1st Appellate District, 5th Division, 2008). A final judgment in the earlier personal injury action establishing that the defendant's products legally caused the plaintiff's mesothelioma bars the defendant from relitigating causation in the later wrongful death action, even with new evidence, absent unusual circumstances denying a full and fair opportunity to defend.
• Holliday v. Warren Pumps LLC (1st Appellate District, 4th Division, 2008). An expert declaration built on speculation (that a pump's asbestos packing and gaskets were removed in an overhaul years before the plaintiff's service, and that fibers then resuspended) lacks foundation and cannot create a triable issue of exposure to the defendant's product.
• Quarles v. Advocate Mines Limited (1st Appellate District, 2nd Division, 2006). A supplier of raw asbestos fiber that is used in a finished product can be liable for design defect under the consumer-expectations test, and substantial evidence supported the jury's findings on liability, exposure, causation and damages.
• McGonnell v. Kaiser Gypsum Co., Inc. (1st Appellate District, 4th Division, 2002). A defendant can shift the burden on summary judgment by showing through the plaintiff's deposition that he had no knowledge of exposure to its products, and the plaintiff must then produce non-speculative evidence of exposure to the defendant's asbestos-containing product; mere possibility and a conclusory expert opinion are not enough.
• Howard v. Owens Corning (1st Appellate District, 3rd Division, 1999). A jury may reject expert testimony, even uncontradicted testimony and even where the defendant calls no expert, so long as it does not act arbitrarily. The rule that uncontradicted expert testimony is conclusive applies only in professional negligence cases where expert testimony sets the standard of care.
• Gutierrez v. Cassiar Mining Corp. (1st Appellate District, 2nd Division, 1998). Under Potter, a plaintiff may recover medical monitoring costs only for monitoring additional to or different from what preexisting conditions such as smoking already require, and a defendant is entitled on request to a jury instruction saying so when the evidence supports it.
• Lineaweaver v. Plant Insulation Co. (1st Appellate District, 1st Division, 1995). A plaintiff must prove exposure to the defendant's asbestos product and a reasonable medical probability that the exposure was a substantial factor in causing the disease; the court declined to shift the burden of proof on causation to defendants under an alternative liability theory.
• Smith v. ACandS, Inc. (1st Appellate District, 1st Division, 1994). A plaintiff must prove the defendant's asbestos products or activities were present at his work site, and speculation will not do. A landowner is not vicariously liable under the peculiar risk doctrine for one contractor's negligence that injures employees of other hired contractors.
• Scott Co. v. Workers'comp. Appeals BD. (1st Appellate District, 3rd Division, 1983). Labor Code section 5500.5 does not impose liability on a last-exposure employer unless the exposure was a contributing (injurious) cause of the disease; the causation requirement of the workers' compensation statutes remains. The board's finding of the last injurious exposure date was supported by substantial evidence.
• Skip Fordyce, Inc. v. Workers'comp. Appeals BD. (4th Appellate District, 2nd Division, 1983). A workers' compensation award must rest on substantial evidence of work-related asbestos exposure, and multiple-level hearsay from a doctor's report, a general pamphlet and an unsupported 'admission' that brake linings contain asbestos does not supply it. Medical opinions based on statistical studies can be substantial evidence of causation.
• Baptist v. Workers'comp. Appeals BD. (1st Appellate District, 1st Division, 1982). An expert medical opinion that rests on speculation or on a study with fundamental unresolved caveats is not substantial evidence supporting a Board decision. The record as a whole, read with the rule of liberal construction in favor of the employee, supported a finding that the death was industrially related.

Colorado

• Fenton v. Fibreboard Corp. (5th Division, 1991). In a strict liability case the focus is on the product, not the manufacturer's knowledge, so evidence of what the manufacturer knew bears only on punitive damages. A set-off for a settlement not yet paid may be handled by ordering any later payment applied to the judgment, with the defendants remaining liable if it is never collected.

Connecticut

• Erhardt v. Bmw OF North America, LLC (2021). Expert opinions based on a cumulative-exposure theory of asbestos causation, grounded in scientific literature and case-specific records, can meet Rule 702 reliability standards. The defendant's criticisms of the methods go to weight rather than admissibility, and admissible expert causation testimony creates a genuine factual dispute that defeats summary judgment.
• Dougan v. Sikorsky Aircraft Corporation (2020). Even assuming Connecticut recognizes a medical monitoring claim without a present physical injury, each plaintiff must offer individualized expert evidence that monitoring is reasonably necessary. General expert testimony about asbestos risks and conclusory affidavits do not meet that burden.
• Dougan v. Sikorsky Aircraft Corp. (2019). Even assuming Connecticut would recognize a medical monitoring claim without present physical injury and that the Massachusetts Donovan elements apply, each plaintiff must offer individualized expert evidence that monitoring is reasonably necessary. General expert statements about asbestos risk, and conclusory affidavits, do not meet that burden.