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.

Connecticut

• RT Vanderbilt Company, Inc. v. Hartford Accident and Indemnity Company (2019). Under Connecticut law, an undefined exclusion for "occupational disease" has a plain meaning beyond workers' compensation and, when not limited to the insured's employees, excludes claims by nonemployees who contracted an occupational disease while working for other employers.
• Bagley v. Adel Wiggins Group (2017). When it is not conceded and not within lay jurors' common knowledge, a plaintiff must prove with competent expert testimony that a product emitted respirable asbestos fibers when used as it was, in order to show the product was dangerous and caused the disease. Without that proof, both strict liability and negligence claims fail, and this requirement existed under law predating the court's recent product liability decisions.
• RT Vanderbilt Company, Inc. v. Hartford Accident and Indemnity Company (2017). In long-latency asbestos claims, Connecticut applies a continuous trigger as a matter of law, with pro rata time-on-the-risk allocation and an unavailability-of-insurance rule. Pollution exclusions bar coverage only for traditional environmental pollution, while occupational disease exclusions reach claims by employees of any employer.
• RT Vanderbilt Co. v. Hartford Acc. & Indem. (2016). For long-latency asbestos disease claims, Connecticut applies a continuous trigger as a matter of law, with pro rata time-on-the-risk allocation and an unavailability-of-insurance rule. Standard pollution exclusions bar coverage only for traditional environmental pollution, and occupational disease exclusions unambiguously reach claims by employees of other employers.

Delaware

• Estate of Anderson v. American Seaboard Exteriors (2022). Under the last injurious exposure rule, the claimant bears the burden of proving the employer injuriously exposed the employee to a disease-causing substance, and the Board may choose between conflicting expert opinions. Prior deposition testimony from asbestos cases can be admissible under Rule 804(b)(1), but excluding it is harmless where it does not show the claimant's own exposure.
• Cox v. Foster Wheeler (In re Asbestos Litigation) (2021). Under maritime law, a plaintiff must show exposure to the defendant's product, that it was a substantial factor in the injury, and that the defendant made or sold it; and a manufacturer may have a duty to warn about asbestos parts incorporated into its equipment under the DeVries test, which here raised genuine fact issues.
• Carnes v. General Dynamics Corp. (In re Asbestos Litigation) (2021). Under Texas law a plaintiff must prove that, more probably than not, he breathed asbestos fibers from the defendant's product, and an expert's speculation without record support of asbestos in the components cannot create a genuine factual dispute.
• Pearsons v. Heidelberg USA (In re Asbestos Litigation) (2020). Under Vermont law, a plaintiff shows substantial factor causation with evidence of more than de minimis exposure, and a right to recover that vested through exposure before the 1967 enactment of the asbestos-related statute of repose is not barred by it.
• Shaw v. American Friction (In re Asbestos Litigation) (2020). A court deciding whether to change a trial date under a scheduling order applies a good cause standard: whether the movant was generally diligent, whether the need for more time was foreseeable or its fault, and whether denial would create a substantial risk of unfairness. Review is for abuse of discretion, and arguments for a different standard not raised below will not be considered.
• Stimson v. AO Smith Corporation (2020). A new trial is warranted only where the evidence preponderates heavily against the verdict or the verdict clearly results from confusion; a jury may accept or reject expert testimony, and a jury-confusion objection not raised at trial is reviewed only for plain error.
• Evans v. Imo Industries, Inc. (2019). An expert may be qualified without direct experience in the subject, and lack of experience goes to weight; but expert testimony lacks "fit" and is excluded when the documents relied on do not govern the defendant's products. Late disclosure of reliance documents is harmless where the opposing party had notice and was not prejudiced.
• Evans v. John Crane, Inc. (2019). General maritime law and state survival statutes can supply survival damages where an asbestos injury is indivisible across the high seas and territorial waters, so DOHSA does not bar them. DOHSA does limit the wrongful death claim itself to pecuniary damages. An expert's lack of experience with the specific products or documents goes to weight, not admissibility.
• Richards v. Copes-Vulcan, Inc. (2019). Under Ohio law, Ohio Rev. Code § 2307.96 and its manner-proximity-frequency factors address only whether exposure to each defendant's asbestos was more than minimal. A plaintiff must still offer expert medical evidence of specific causation to survive summary judgment.
• Call v. Ford Motor Co. (In re Asbestos Litigation) (2018). Indiana's general negligence "but for" causation standard applies to asbestos cases, so a substantial contributing factor opinion that concedes it does not meet that standard cannot defeat summary judgment.
• Richards v. Copes-Vulcan (In re Asbestos Litigation) (2018). A party seeking to supplement an expert report after summary judgment must show good cause or excusable neglect, and plaintiffs who never sought leave before judgment was entered did not do so.
• RT Vanderbilt Co. Inc. v. Galliher (2014). A trial court must instruct the jury on the substance of the governing law, here the employer's duty of care under Ohio law, when the defendant blames the employer. A new trial is required where an expert's inadmissible hearsay about the defendant's lying and bribery is not cured.
• In re Specialty Products Holding Corp. (2013). In estimating asbestos liability under §502(c)(1), the court relies on the debtors' own tort-system claiming and settlement history, which places a value on claims. It will not discount that history for claimed implicit defense costs, nuisance settlements, market share, or apportionment among corporate eras.
• Galliher v. R. T. Vanderbilt (In re Asbestos Litigation) (2012). A late-identified expert's testimony may be allowed, with a trial continuance to cure prejudice, where the opposing party consented to the late report and did not timely object. The court called this a rare exception to the rule that late-identified experts are precluded.
• Rhodes v. Diamond State Port Corporation (2010). The Board may credit one expert over another, and its finding that the claimant did not prove asbestos exposure or asbestos causation was supported by substantial evidence. The last injurious exposure rule does not apply where injurious exposure during the employment was not proved.
• General Motors Corporation v. Grenier (2009). A trial court's decision to admit expert testimony under Daubert and D.R.E. 702 is reviewed for abuse of discretion, and experts may reliably conclude that chrysotile from friction products is carcinogenic without epidemiological studies showing that association. Isolated errors in evidence and in closing argument did not require a new trial.
• General Motors Corporation v. Grenier (2009). An expert's methodology must be reliably applied to the facts of the case, and a trial court's Daubert findings must be supported by the record and be the product of a logical and orderly reasoning process. Findings that mischaracterize the expert testimony require remand for reconsideration.
• Grenier v. General Motors Corp. (In re Asbestos Litigation) (2009). A plaintiff's expert need not disprove a defendant's unproven hypothesis to satisfy Daubert; an expert who reviews all available evidence and finds no reliable support for the hypothesis uses a reliable methodology. Occupation-specific epidemiology is not required as a matter of law to show that chrysotile in friction products can cause asbestos disease.
• In re Armstrong World Industries, Inc. (2006). Under the Markell rebuttable-presumption test, a plan does not discriminate against a dissenting unsecured class if the plan proponents show by a preponderance of the evidence that the asbestos personal injury liability estimate is reasonable, so the class's percentage recovery is not materially lower than the asbestos claimants'. Estimation must be based on state tort law and the debtor's historical experience, adjusted for probable changes.
• In re Asbestos Litigation (2006). Under Daubert, plaintiffs' experts may testify that friction products increase the risk of asbestos disease, because their methods were reliable. Occupation-specific epidemiology is not required as a matter of law, and the court does not choose between competing reliable scientific views.
• In re WR Grace & Co. (2006). A property damage claimant must show that an asbestos-containing product creates an unreasonable risk of harm at the exposure levels actually encountered; contamination and fiber release on disturbance, without reliable evidence of risk, are not enough. Expert evidence must meet Daubert reliability and fit requirements to defeat summary judgment.
• Owens Corning v. Credit Suisse First Boston (2005). Under Bankruptcy Code section 502(c), asbestos claims are estimated by their value in the state-law tort system as of the petition date, with historical settlement and verdict values adjusted for factors unlikely to recur, including punitive damages, which are subordinated in bankruptcy.
• Money v. Manville Corp. Asbestos Comp. Fund (1991). To make a prima facie case that a defendant's asbestos product caused an asbestos-related disease, a plaintiff must offer direct expert medical testimony, stated in terms of reasonable medical probability, that the defendant's product was a proximate (but-for) cause of the injury; causation cannot be left to lay inference.

District of Columbia

• Jackson v. Colgate-Palmolive Company (2019). An expert's asbestos testing opinion is unreliable and excluded where the method skipped a required confirmatory step and the results cannot be verified, and a specific causation opinion fails where it rests on an unreliable control group and ignores other reported exposure; gaps in chain of custody for talc samples go to weight where adulteration is reasonably eliminated.
• Wannall v. Honeywell International, Inc. (2013). Under Virginia law as stated in Boomer, a plaintiff in a multiple-exposure mesothelioma case needs expert evidence of what level of exposure is sufficient to cause mesothelioma and that the defendant's exposure was sufficient. Substantial-contributing-factor opinions and 'no safe level' risk opinions do not meet that standard, and a late expert declaration filed without leave can be excluded under Rules 26 and 37.
• Owens-Corning Fiberglas Corp. v. Henkel (1997). A Batson objection must be raised before the jury is sworn or it is waived; state-of-the-art evidence of what the industry knew is admissible to show what a manufacturer should have known; and the new one-year asbestos limitations statute (D.C. Code § 12-311) cannot be applied to bar a claim already accrued and timely under the prior three-year statute.

Florida

• Edmonds v. Air & Liquid Systems Corporation (2024). An expert opinion that every asbestos exposure, however small, substantially contributed to cancer is unreliable under Daubert, but a cumulative-exposure opinion limited to exposures found to be regular, frequent and proximate and framed as increasing risk in a dose-related way is admissible.
• Union Carbide Corporation v. Font (3rd District, 2020). A defendant may present evidence of alternative causes, such as a decedent's own sworn asbestos claims against non-parties, without proving those non-parties' fault by expert testimony; and a learned intermediary instruction must let the jury understand that reasonable reliance on an intermediary fulfills or discharges the duty to warn.
• DeLisle v. Crane Co. (2018). The 2013 amendment to section 90.702 adopting the Daubert standard infringes on the Florida Supreme Court's rulemaking authority to the extent it is procedural, so Frye remains the test in Florida. Medical causation testimony is not new or novel and is not subject to Frye analysis.
• Doolin v. Ford Motor Company (2018). Under Daubert and Eleventh Circuit precedent, an expert's "any exposure" or cumulative-exposure opinion on specific causation is unreliable if it does not analyze the plaintiff's dose, does not address the particular form of mesothelioma, and does not weigh a competing cause such as radiation therapy. Without admissible expert proof of specific causation, a Florida product liability plaintiff cannot show proximate cause and loses on summary judgment.
• Northrop Grumman Systems Corporation v. Britt (3rd District, 2017). A suggestion of death must be filed with the court and served to start Florida's 90-day substitution period under Rule 1.260(a)(1). Competent, substantial evidence of causation may support a mesothelioma verdict even without precise dose quantification, particularly where the premises owner did not monitor airborne asbestos.
• Crane Co. v. DeLisle (4th District, 2016). A trial court must act as an active gatekeeper under section 90.702 and Daubert, and an expert's 'every exposure above background' causation opinion unsupported by tested data or explained methodology is inadmissible. Counsel's invitation to measure damages by the defendants' expert fees is an improper basis for an award.
• Dugas v. 3M Company (2016). A dust mask not designed or marketed to protect against asbestos is not defectively designed for failing to do so, but a jury may find the manufacturer's warnings about its limits inadequate. A Florida fraud claim is barred when the last act of concealment fell outside the 12-year repose period.
• Waite v. Aii Acquisition Corp. (2016). Where the medical community accepts that asbestos causes mesothelioma, the court need not conduct an extensive general-causation Daubert analysis, and weight-of-the-evidence expert testimony may go to the jury. The bare metal defense does not bar liability where the plaintiff was exposed to the defendant's own original asbestos-containing parts.
• Fernandez v. Union Carbide Corp. (3rd District, 2006). A trial court acts within its discretion in admitting a medical report found in a chart while excluding unexplained handwritten notes, because the rule of completeness applies only where fairness requires considering the other writing contemporaneously.
• Chesterton v. Fisher (3rd District, 1995). A party may use medical treatises to cross-examine an expert who does not recognize them as authoritative, and must be allowed to establish their authoritativeness through other experts or judicial notice. On retrial, the jury must be able to apportion fault among all alleged tortfeasors, including settled nonparties, under Fabre v. Marin.
• Davies v. Owens-Illinois, Inc. (3rd District, 1994). Knowledge that an officer or director acquires within the scope of his authority is imputed to the corporation, so a deposition showing a director's knowledge of asbestos dangers should not have been excluded as non-imputable to the defendant.

Georgia

• Bowers v. CSX Transportation, Inc. (2023). The relaxed causation standard in FELA cases does not relax the standard for admitting expert testimony, which is still governed by Rule 702. A trial court acting as gatekeeper does not abuse its discretion by excluding a specific-causation opinion whose use of studies and differential diagnosis it finds unreliable.
• Georgia Power Company v. Campbell (2021). An owner owes no duty to a contractor's employees only if it relinquished possession and did not control the work, and contract terms showing retained control raise fact questions. A trial court must act as gatekeeper and rule on a challenge to an expert's qualifications; an appellate court will not decide an argument the trial court did not address.
• McKENNEY'S Inc. v. Sinyard (2019). A superior court must uphold a Workers' Compensation Board finding supported by any competent evidence unless the Board clearly relied on an erroneous legal theory. A claimant's earlier unverified complaint can be used as an evidentiary admission, and the claimant bears the burden of proving the employer of last injurious exposure.
• Hanson v. Colgate-Palmolive Co. (2018). Expert opinion is unreliable under Rule 702 and Daubert when the expert did not record data that would let others test his work and skipped a step needed to rule out false positives. Other experts cannot rely on an opinion the court has excluded or repeat findings outside their own expertise.
• Scapa Dryer Fabrics, Inc. v. Knight (2016). Expert causation testimony that any exposure above background asbestos contributes to mesothelioma, regardless of extent, does not "fit" Georgia's causation standard, which requires more than a de minimis contribution, and so should be excluded under the gatekeeping standard of former OCGA § 24-9-67.1 (b).
• Scapa Dryer Fabrics, Inc. v. Knight (2015). Where a plaintiff has multiple asbestos exposures involving multiple defendants, each defendant's conduct need only be a contributing cause, not a substantial one. Expert testimony that Scapa's exposures were substantial causes was reliable enough to be admitted, and a pretrial reliability hearing is discretionary, not mandatory.
• Cabasug v. Crane Company (2013). Under maritime law a plaintiff must show exposure to each defendant's asbestos product, and a manufacturer is not liable for replacement parts it did not supply; a parent or successor is not liable for a subsidiary's acts absent facts supporting piercing the corporate veil.
• Union Carbide Corporation v. Fields (2012). A defendant cannot have fault allocated to a nonparty under OCGA § 51-12-33 unless it presents competent evidence that the nonparty's product actually contributed to the plaintiff's injury; inference, unverified allegations, or settled status alone are not enough. An employer owes no duty for take-home exposure, so it bears no allocable fault.
• Butler v. Union Carbide Corporation (2011). A trial court does not abuse its discretion under OCGA § 24-9-67.1 and Daubert by excluding an expert's 'any exposure above background' specific causation opinion as unreliable, and without that expert evidence a toxic tort plaintiff cannot show specific causation to survive summary judgment.