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.

Kentucky

• Hayes v. Colgate-Palmolive Company (2021). A corporate representative's testimony about personal and family use of the company's product is irrelevant to the company's knowledge for punitive damages and unduly prejudicial under KRE 403. A scientific article is admissible under KRE 703 or 803(18) only if the testifying experts actually relied on it, not merely because it is reliable.
• Papineau v. Brake Supply Company, Inc. (2021). Under Kentucky's substantial-factor test, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the disease. A cumulative-dose opinion tied to the defendant's specific products, as distinct from the rejected each-and-every-exposure theory, can create a jury question. A seller that relines used brake shoes alters them and falls outside the Kentucky Middleman Statute.
• Stallings v. Georgia Pacific Corp. (2017). Under Kentucky law as the Sixth Circuit has applied it in Martin and Moeller, expert testimony that any or every asbestos exposure contributes to disease does not meet the 'substantial factor' causation standard. The Kentucky Supreme Court's CertainTeed decision did not clearly adopt that theory, so the court remained bound by its own precedent.
• Anderson v. Motorola Solutions, Inc. (2015). In an asbestos case, circumstantial evidence that the plaintiff and the defendant's asbestos-containing products were in the same place at the same time and that inhaling the fibers was a substantial factor in the disease is enough to reach a jury on causation and product identification.
• Stallings v. Georgia-Pacific Corporation (2015). Under both maritime law and Kentucky law, a plaintiff must show exposure to the defendant's product at a level high enough to make a finding of substantial causation more than conjecture. A manufacturer is not liable for asbestos in other makers' replacement parts, and an expert opinion that any exposure is a substantial cause does not meet that standard.
• Rehm v. Ford Motor Company (2011). Evidence rulings are reviewed for abuse of discretion. The trial court properly admitted 28-year-old newspaper articles under the ancient-documents hearsay exception and let a qualified expert testify, because weaknesses in expert testimony go to weight and are tested on cross-examination. A loss of consortium claim accrues when the disease becomes manifest, not on exposure.
• Cardinal Industrial Insulation Co., Inc. v. Norris (2009). Under Kentucky's substantial factor test, a plaintiff must show that the defendant's asbestos work probably, not merely possibly, exposed him; fiber drift is expert evidence rather than a causation test and cannot alone support liability without proof of proximity. A claim of professional negligence against an engineer requires expert testimony on the standard of care.
• RT Vanderbilt Company, Inc. v. Franklin (2009). Under the discovery rule, a claim does not accrue until the plaintiff knows or reasonably should know of the injury and who may have caused it. A jury may decide reasonable diligence when the facts are disputed, and a defendant's misrepresentation about its product bears on that question. A trial court may strike a party's defenses as a discovery sanction after willful violations, if it considers willfulness, prejudice, warnings, lesser sanctions and proportionality and makes findings.
• Jeffries v. Georgia-Pacific Corporation (2008). Errors not objected to at the time are not preserved by raising them in a new-trial motion, juror affidavits about confusion cannot impeach a verdict, and evidentiary errors are harmless where the jury's finding of no use of the defendant's product meant it never reached causation.
• Clephas v. Garlock, Inc. (2004). Allowing an expert to give medical and causation opinions that were not disclosed under the expert-disclosure rule (CR 26.02(4)) and that the other side could not explore by deposition is an abuse of discretion when it prejudices the other party. Admitting an industrial hygienist's testimony despite unmet Daubert criteria was within the trial court's discretion, since the reliability test is flexible.
• Bailey v. North American Refractories Co. (2001). Legal causation is ordinarily a jury question. An expert's fiber-drift opinion combined with evidence of the defendant's asbestos products at the plant created a fact issue on substantial-factor causation. The court would not adopt either the fiber-drift theory or the frequency-regularity-proximity test as a matter of law.

Louisiana

• Chenet v. Colgate-Palmolive Company (4th Circuit, 2024). A discretionary new trial under La. C.C.P. art. 1973 was an abuse of discretion where the stricken testimony had no bearing on the question the jury decided and the facts did not support a finding of a miscarriage of justice.
• Craft v. Eagle, Inc. (4th Circuit, 2024). Under Daubert and La. C.E. art. 702, the character of the evidence an expert relies on goes to the weight of the opinion, not its admissibility. Challenges to the facts underlying an expert's opinion are for cross-examination and the jury.
• Legendre v. Louisiana Ins. Guaranty Association (2024). Experts whose qualifications and reliable methods are shown may testify under Rule 702; disagreements with the facts relied on or with the experts' interpretation go to cross-examination rather than exclusion.
• Marsh v. Chas Kurz & Company (2024). A Jones Act plaintiff must show he was exposed to the toxic substance aboard the particular defendant's vessels, and general evidence that asbestos was widely used on ships does not suffice. Expert opinions resting only on that general use and on the plaintiff's assumption may be excluded, and without them causation cannot be shown.
• Sentilles v. Huntington Ingalls Incorporated (2024). An expert with a marine engineering background, Navy service and two decades of research into government shipbuilding practices may testify on government asbestos requirements and knowledge. His opinions satisfy Rule 702 and Daubert as relevant, reliable and helpful to the jury.
• Sentilles v. Huntington Ingalls Incorporated (2024). A court may decline under Rule 54(b) to reconsider an unopposed summary judgment order when there is no new contrary evidence, and a plaintiff may not adopt a settling party's experts late, or offer new undisclosed expert opinions, where that would unfairly prejudice the defendant.
• Crossland v. Huntington Ingalls, Inc. (2023). Strict liability under Louisiana Civil Code art. 2317 requires that the defendant have custody or control of the dangerous thing. Under Louisiana negligence law, fact disputes over a husband's workplace exposure and the employer's knowledge preclude summary judgment on a take-home claim. Experts may rely on fact-witness testimony about exposure, and challenges to that testimony go to weight.
• Gooding v. Liberty Mutual Insurance Company (2023). Under Fed. R. Evid. 703, experts may rely on otherwise inadmissible facts or data if experts in the field would reasonably rely on them, so expert opinions based on the decedent's deposition created a fact dispute that defeated summary judgment even if the deposition was inadmissible against the defendant.
• Pete v. Boland Marine and Manufacturing Company, LLC (4th Circuit, 2023). A jury instruction that correctly makes fault an element of a take-home claim cures the omission of fault from a verdict interrogatory when no timely objection was made. The reviewing court will not disturb a jury's causation finding or a general damage award unless the record shows manifest error or an abuse of discretion.
• Ragusa v. Louisiana Guaranty Insurance Association (2023). Medical experts may give specific-causation opinions in an asbestos mesothelioma case if they assess the plaintiff's exposures against literature and occupational standards rather than relying on an 'every exposure above background' theory; a precise exposure level is not required, and lack of specialization goes to weight.
• Ragusa v. Louisiana Guaranty Insurance Association (2023). Under Louisiana law, a plaintiff opposing summary judgment need only show a reasonable jury could find it more likely than not that he inhaled the defendant's asbestos fibers. A medical expert who weighs qualitative exposure factors, rather than just reciting an 'every exposure' theory, can raise a fact issue on causation. Contracts to sell custom-built turbines and boilers are sales contracts, not construction contracts, so the peremptive period for construction work does not apply.
• Robichaux v. Huntington Ingalls Inc. (2023). Under Rule 37(c)(1), late-disclosed expert affidavits need not be excluded where the factors (importance, prejudice, continuance, explanation) show substantial justification or harmlessness, even if the affidavits are not proper supplemental reports.
• Adams v. Eagle, Inc. (2022). Under Louisiana law, a party must show significant exposure to asbestos attributable to the defendant and that the exposure was a substantial factor in the injury; a reasonable jury could find both here, so summary judgment was not proper.
• Allen v. Eagle Inc. (4th Circuit, 2022). Conflicting testimony about exposure is a credibility question that cannot be resolved on summary judgment. An expert's reliance on assumptions about frequency, duration and proximity of exposure goes to the weight of the opinion, not its admissibility under Daubert.
• Becnel v. Lamorak Insurance Co. (2022). Under Louisiana law, a plaintiff opposing summary judgment need only show that a reasonable jury could find it more likely than not that he inhaled the defendant's asbestos fibers, however slight the exposure, and experts need not calculate a dose for each defendant. A manufacturer may owe a duty to warn when its product requires asbestos-containing parts or insulation to function as intended.
• Becnel v. Lamorak Insurance Co. (2022). Under Louisiana law a plaintiff must show significant exposure to the defendant's product that was a substantial factor in the injury. Expert evidence of general and specific causation, including a reliable differential diagnosis, was enough to create a fact question for the jury.
• Becnel v. Lamorak Insurance Company (2022). Under Louisiana law, an insurer bears the burden of proving an exclusion applies, and an insurer is liable only for exposures during its policy period. Conflicting expert testimony on whether the exclusion was in the policy, and evidence of exposure to Eagle insulation during the policy period, create fact issues that cannot be resolved on summary judgment.
• Cortez v. Lamorak Ins. Co. (2022). A witness who gives opinions based on technical or specialized knowledge, such as air-monitoring studies of asbestos fiber release, must be disclosed with an expert report under Rule 26(a)(2)(B). Such opinions cannot be offered as lay opinion under Rule 701, and a deposition from another case is not an expert report.
• Cortez v. Lamorak Insurance Company (2022). Under Rules 403 and 701, the court excluded prejudicial labels and marginally relevant evidence, but allowed lay witnesses who worked with asbestos-containing products to infer that the dust from them contained asbestos.
• Cortez v. Lamorak Insurance Company (2022). A study an expert relies on need not replicate the exact conditions of the plaintiff's exposure; it need only afford a fair comparison, and disputes over the bases of an expert's opinion go to weight and are addressed through cross-examination.
• Cortez v. Lamorak Insurance Company (2022). An expert's testimony is admissible if relevant to a pending issue, such as a shipyard's knowledge of asbestos hazards for a sophisticated-purchaser defense, but testimony on issues already resolved by summary judgment or outside the expert's field is excluded.
• Cortez v. Lamorak Insurance Company (2022). An expert may estimate asbestos exposure by applying published studies of similar activities to witness testimony and comparing the results with occupational standards, because plaintiffs need not prove the precise amount of toxic substance; challenges to the expert's factual basis go to cross-examination.
• Cortez v. Lamorak Insurance Company (2022). A motion to exclude expert testimony as cumulative under Federal Rule of Evidence 403 is premature before trial, and the objection can be raised at trial to specific testimony.
• Cortez v. Lamorak Insurance Company (2022). An expert may not give legal conclusions, so an industrial hygienist cannot testify that a supplier is a manufacturer or professional vendor under Louisiana law, though he may say he would look to the company named on the product for hazard information.
• Cortez v. Lamorak Insurance Company (2022). Under Federal Rule of Evidence 703, an expert may rely on inadmissible facts or data that experts in the field reasonably rely on, but the proponent may not disclose them to the jury unless their probative value in evaluating the opinion substantially outweighs their prejudicial effect.
• Cortez v. Lamorak Insurance Company (2022). A plaintiff is entitled to summary judgment that he has mesothelioma and that asbestos caused it when the medical evidence, including defense experts' testimony, is undisputed; arguments about fiber type, sources and specific causation do not defeat that limited motion.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law, an asbestos claimant must show significant exposure and that the exposure was a substantial factor in causing his injury. A short period of exposure does not by itself entitle a defendant to summary judgment. Deposition testimony from another proceeding can be considered on summary judgment if it could be presented in admissible form at trial.
• Roussell v. Huntington Ingalls, Inc. (2022). Under Louisiana law, a plaintiff must prove exposure to asbestos from the defendant's product and that the exposure was a substantial cause of her injury; without direct or circumstantial evidence connecting the exposed person to the defendant's products, summary judgment is proper.
• Williams v. Lockheed Martin Corporation (2021). A defendant may remove under the federal officer statute based on the full state-court record if it raises a colorable government contractor defense. Mesothelioma claims accruing after the 1975 Louisiana workers' compensation amendment are barred by the exclusive remedy provision, and plaintiffs needed evidence of significant asbestos exposure before that date to avoid the bar.
• Williams v. Seidenbach (2021). Under Louisiana law, a plaintiff must show significant exposure to the defendant's asbestos product as a substantial factor in causing the injury, and the burden is not relaxed in a long-latency, multiple-defendant case. Federal officer removal was proper because the contractor raised a colorable government contractor defense.
• Adams v. Ethyl Corporation (2020). Under Louisiana article 2317, a premises condition is a defect if it is relatively permanent, and routine, ongoing maintenance activity that disturbs asbestos is not categorically a temporary condition. A jury's reasonable inferences from the evidence, and a district court's remittitur applying the maximum recovery rule, receive deferential review.
• Dempster v. Lamorak Ins. Co. (2020). Under Federal Rule of Evidence 403, testimony whose probative value is substantially outweighed by unfair prejudice may be excluded. Religious comparisons and testimony about corporate sinning were excluded, while a medical analogy to crucifixion that portrays the patient's suffering was allowed.
• Dempster v. Lamorak Ins. Co. (2020). Even assuming the Welch Paper might qualify under the learned treatise exception of Rule 803(18), a court may exclude it under Rule 403 where its limited probative value is substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury and cumulative evidence.
• Dempster v. Lamorak Insurance Co. (2020). Questions about whether an expert's tests matched the plaintiff's exact exposure go to the weight of the testimony, not its admissibility, and may be raised on cross-examination.
• Gaddy v. Taylor Seidenbach, Inc. (2020). Under Louisiana article 2317 as it stood in 1955-1959, asbestos dust from constant, necessary refurbishment work in a plant is not a 'temporary condition' that bars strict liability. Under the maximum recovery rule, a general damages award above the range supported by comparable mesothelioma cases must be reduced to the highest amount a jury could properly award.
• Gomez v. Aardvark Contractors, Inc. (2020). A scheduling order deadline may be modified for good cause, which requires showing the deadline could not reasonably be met despite the party's diligence. The court weighs the explanation, the importance of the amendment, prejudice, and the availability of a continuance.
• Lopez v. McDERMOTT, Inc (2020). Under Louisiana Code of Evidence art. 804(B)(1), a deceased plaintiff's deposition can be used against a defendant who was absent if other defendants present, such as gasket and packing makers, had a similar motive and opportunity to cross-examine. Testimony about exposure and an expert's opinion that above-background exposures were a substantial cause create a fact question on causation.
• Bagwell v. Union Carbide Corporation (4th Circuit, 2019). A jury's choice between conflicting views of the evidence on exposure and causation will not be disturbed on review. An appellate court that finds a general damages award an abuse of discretion may raise it to the lowest reasonable amount, guided by awards in similar mesothelioma cases.
• Craft v. Ports America Gulfport, Inc. (4th Circuit, 2019). A plaintiff must show by a preponderance of the evidence that future medical expenses will be medically necessary, and need not prove their exact value. An employer's duty to protect workers from asbestos depends on whether it knew or should have known of the danger during the employment.