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.

Louisiana

• Michel v. Ford Motor Company (2019). An expert's specific-causation opinion based on differential etiology and a case-specific relative comparison of exposures is reliable and admissible under Rule 702. It differs from the excluded 'any exposure above background' theory, and disputes over the studies relied on go to weight and cross-examination.
• Michel v. Ford Motor Company (2019). Plaintiffs must show exposure to asbestos from the defendant's products and an injury substantially caused by that exposure. Whether a particular exposure was a substantial contributing factor in causing mesothelioma is a question of fact for the jury.
• Schindler v. Dravo Basic Materials Company (2019). An expert's specific-causation opinion in an asbestos case is unreliable under Rule 702 when it rests on too little information about the plaintiff's exposure and on an 'each and every exposure' theory. The Jones Act's lower causation burden does not relax the Rule 702 reliability standard.
• Schindler v. Dravo Basic Materials Company, Incorporated (2019). Ordinary Rule 702 and Daubert reliability standards apply in Jones Act cases despite the reduced causation burden, and toxic-tort claims need expert proof of causation, so experts who merely assumed exposure on the vessel were properly excluded.
• Michel v. Ford Motor Company (2018). Under Rule 37(c)(1) and the four Geiserman factors, expert reports disclosed months after the discovery deadline, without good cause, may be excluded, and a scheduling order that lists no deadline does not reopen a closed discovery period.
• Bell v. Foster Wheeler Energy Corp. (2017). Under the court's narrowed bare metal defense, a component maker can be liable under general maritime law if it substantially participated in integrating its part with asbestos products or recommended asbestos for use with its part. A manufacturer is not liable merely because asbestos ended up on its product, or because asbestos use was foreseeable.
• Bell v. Foster Wheeler Energy Corp. (2017). Under general maritime law, an expert's specific causation opinion in a multi-defendant mesothelioma case is unreliable under Rule 702 if it rests only on population-level studies of exposure levels and not on the plaintiff's own exposure history. Experts may still testify on general causation and on what studies show, but may not offer a backdoor specific causation opinion.
• Bell v. Foster Wheeler Energy Corp. (2017). A "one-size-fits-all" specific causation opinion that draws no distinctions among a plaintiff's exposures to different defendants' products is unreliable under Rule 702 and Daubert, and an expert cannot rely on general causation evidence alone to say a particular product did not cause the disease.
• Coleman v. Anco Insulations, Inc. (2017). Destructive testing of tangible things, including a decedent's tissue samples, may be ordered under Rule 34 after balancing the relevance and reasonableness of the testing against prejudice to the opposing party. Objections that the results will be unreliable are for a Daubert or in limine motion.
• Romano v. Metropolitan Life Ins. Co. (4th Circuit, 2017). A solidary obligor gets a virile share credit only if the plaintiff released the other tortfeasor and that tortfeasor's liability was established at trial; absent a settlement, no credit applies. A general damages award that is an abuse of discretion is raised to the lowest amount a jury could reasonably have awarded.
• Sheppard v. Liberty Mutual Insurance Company (2017). Rule 408 and the collateral source rule do not bar all settlement or collateral-source evidence, which may be admitted for limited purposes after balancing. A medical record prepared by another facility but kept in a custodian's files can qualify as a business record, and authentication needs only evidence sufficient to support a finding.
• Sheppard v. Liberty Mutual Insurance Company (2017). Treating physicians who gave neither an expert report nor a Rule 26(a)(2)(C) disclosure are automatically excluded under Rule 37(c)(1) from giving expert opinions, and testimony on diagnosis or cause of asbestos-related disease is expert opinion. Medical records alone do not satisfy the disclosure requirement.
• Bell v. Foster Wheeler Energy Corp. (2016). An expert may testify about studies that are not exactly on point, since the differences go to weight and can be explored on cross-examination. He may not present a study as showing the plaintiff's likely exposure unless the study's conditions were substantially similar to the plaintiff's working conditions.
• Bell v. Foster Wheeler Energy Corp. (2016). An expert's opinion that each and every "significant" asbestos exposure caused mesothelioma is not meaningfully different from the "each and every exposure" theory and is unreliable ipse dixit under Rule 702. Evidence that exposure raises disease risk does not establish specific causation.
• Boudreaux v. Bollinger Shipyard (4th Circuit, 2016). A trial court does not abuse its discretion in excluding an expert's causation opinion under Daubert-Foret when the proponent offers no independent evidence that the methodology is generally accepted. Without that expert, plaintiffs cannot prove cause-in-fact and summary judgment is proper.
• Comardelle v. Pennsylvania General Ins. Co. (2015). An expert's opinion that every exposure to asbestos contributes to causing mesothelioma, without reference to the specific facts of the plaintiff's exposures, is not reliable under Rule 702 and Daubert and is inadmissible as specific-causation testimony.
• Comardelle v. Pennsylvania General Insurance Company (2015). An expert's opinion that every exposure to asbestos contributed to a person's mesothelioma is not tied to the facts of the individual's exposures and is unreliable under Rule 702 and Daubert, so it is inadmissible as specific-causation testimony.
• Hayes v. Asbestos Corp. Ltd. (2015). Under the Louisiana Products Liability Act, a manufacturer is liable only for harm from a reasonably anticipated use of its product. The court held the brake drum blow out procedure was not a reasonably anticipated use in the 1990s, given the manufacturer's repeated warnings and instructions.
• Hayes v. Asbestos Corp. Ltd. (2015). Under Louisiana law a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury; the mere physical presence of asbestos or speculation that a gasket contained asbestos is not enough to defeat summary judgment.
• Hayes v. Asbestos Corp. Ltd. (2015). Under the Louisiana Products Liability Act, a plaintiff must identify the defendant's product as a source of the asbestos exposure and show it was a substantial factor in causing the illness; speculation about unidentified vehicles and brake jobs is not enough.
• Oddo v. Asbestos Corporation Ltd. (4th Circuit, 2015). When a jury's special-verdict answers are irreconcilably inconsistent and the trial court neither sends the jury back nor orders a new trial, that is legal error, and the appellate court reviews the affected findings de novo. In asbestos cases a plaintiff must show exposure to the defendant's product was significant and a substantial factor in causing the disease.
• Smith v. Union Carbide Corporation (2015). Dose reconstruction methodology was sufficiently established and accepted to pass Daubert analysis, and concerns about applying it to one person's dose rather than a population's could be addressed through cross-examination.
• Vedros v. Grumman (2015). Objections that an expert lacks a factual basis go to the weight of the opinion, not its admissibility under Rule 702 and Daubert. They are left to cross-examination and the jury.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2015). An expert's specific causation opinion that every asbestos exposure above background causes mesothelioma is not meaningfully different from the "every exposure" theory and is unreliable under Rule 702 and Daubert. Louisiana law calls for a qualitative evaluation of the plaintiff's specific exposures.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2015). When a substitute expert is allowed to replace an original expert, the substitute's report and testimony may not go beyond the original expert's report and testimony, and opinions that exceed that scope may be stricken.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2015). When a court lets a party substitute an expert for one who has died, on the condition that the substitute's testimony stay within the original expert's report, the substitute's opinions that go beyond or contradict the original expert's report may be struck as unfairly prejudicial to the opposing party.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2015). An asbestos exposure expert need not calculate the specific dose or concentration of asbestos from a defendant's product to give a reliable causation opinion, and a motion in limine cannot substitute for a summary judgment motion on whether exposure to the defendant's product occurred.
• Comardelle v. Pennsylvania General Insurance Company (2014). A genuine issue of fact on exposure defeats summary judgment, and challenges to an expert's factual basis and exposure history go to weight rather than admissibility. An expert need not know the dose of asbestos from each defendant to give a causation opinion.
• Davidson v. Georgia Pacific LLC (2014). An expert's "every exposure" theory of asbestos causation is inadmissible under Rule 702 and Daubert and conflicts with Louisiana's substantial factor test; without other expert causation testimony, plaintiffs cannot create a genuine dispute on causation.
• Davidson v. Georgia Pacific, LLC (2014). Under Rule 37(c)(1), a court weighs the explanation, prejudice, possible cure by continuance, and the importance of the testimony in deciding whether to strike an expert for deficient disclosures. Expert reports from a prior proceeding that evolved over time and lack required details do not satisfy Rule 26(a)(2)(B).
• Robertson v. Doug Ashy Building Materials, Inc. (1st Circuit, 2014). A plaintiff in an asbestos case may prove substantial-factor causation through a qualitative assessment of exposure (level, frequency, nature, proximity, duration) without quantifying dose. Disputed fact questions about the relative contribution of chrysotile exposure cannot be resolved on summary judgment.
• Robertson v. Doug Ashy Building Materials, Inc. (1st Circuit, 2014). A plaintiff in an asbestos case may prove causation through a qualitative assessment of exposure (level, frequency, nature, proximity, duration) and need not prove a quantitative dose. Genuine fact issues about exposure to the supplier's asbestos and its substantial contribution to mesothelioma preclude summary judgment.
• Robertson v. Doug Ashy Building Materials, Inc. (1st Circuit, 2011). A summary judgment may be granted only on issues raised in the motion. A motion that challenges only exposure to the defendant's asbestos does not put medical causation at issue, and circumstantial evidence that a manufacturer bought the supplier's asbestos can create a fact question on exposure. A raw-asbestos supplier also owes the general duty of reasonable care.
• Robertson v. Doug Ashy Building Materials, Inc. (1st Circuit, 2011). A summary judgment may be rendered only on issues set forth in the motion under consideration, and a trial court must conduct a Daubert analysis tied to the case's facts before excluding an expert as unreliable. An asbestos plaintiff need show only significant exposure to the defendant's product that was a substantial factor in causing the disease, not the dose from each defendant or epidemiological proof.
• Rando v. Anco Insulations, Inc. (1st Circuit, 2008). The 1952 version of the Louisiana workers' compensation statute did not cover mesothelioma, so exclusivity did not bar a tort suit against the employer. The peremption exception for those in possession or control of an improvement applies to a contractor that controlled the construction, not just to owners, lessors and tenants.
• Grant v. American Sugar Refining, Inc. (4th Circuit, 2007). On summary judgment a court cannot make credibility determinations or weigh evidence, and expert affidavits are tested only under the Daubert-Foret standards without evaluating their persuasiveness. Circumstantial evidence of the defendant's insulation work at the premises can create a genuine issue on exposure.
• Adams v. Asbestos Corp. Ltd. (2nd Circuit, 2005). Under the 1952 version of La. R.S. 23:1031.1, asbestos is a compound of oxygen and of metals other than lead, so a disease resulting from contact with it is a covered occupational disease and workers' compensation is the exclusive remedy.
• Zimko v. American Cyanamid (4th Circuit, 2005). An employer is immune from tort suit under workers' compensation exclusivity unless it committed an intentional act, which requires intent to injure or knowledge that injury was substantially certain; knowingly maintaining a dangerous asbestos workplace is only negligence. An employer owes a duty of reasonable care to household members of employees exposed to asbestos carried home on the employee's clothing or person.
• Hoerner v. Anco Insulations, Inc. (4th Circuit, 2002). In Louisiana asbestos cases a defendant is liable only if the plaintiff's exposure to its products was a substantial factor, shown by frequent and regular exposure. An executive officer is liable only with a personal duty to provide a safe workplace, including some control over purchasing equipment and supplies.
• In re Babcock & Wilcox Co. (2002). Future unasserted asbestos liabilities count as liabilities in measuring insolvency under the Louisiana revocatory action, and the plaintiffs must prove insolvency by an objective estimate; GAAP is relevant but neither controlling nor presumptively valid.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). A product is unreasonably dangerous per se if its danger-in-fact outweighs its utility, regardless of the manufacturer's knowledge. Working near contractors who cut the product is enough evidence of exposure to support liability.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). A wrongful death claim arises at death, so the post-1976 workers' compensation immunity barred it against Avondale's executive officers. A survival action in a long-latency disease case is governed by the law in effect when the worker was exposed, so exposure beginning in 1964 left it open.
• Lilley v. Board OF Sup'rs OF State Univ. (3rd Circuit, 1999). A defendant that knows a building contains asbestos and lets people work there without warning them owes a duty to warn, and mental anguish damages can be awarded for asbestos exposure without proven physical injury. Medical monitoring costs require a significantly increased risk of serious latent disease, and a slight increase does not meet that test.
• Asbestos v. Bordelon, Inc. (4th Circuit, 1998). Where significant asbestos exposure occurred before the Louisiana Products Liability Act, pre-Act law governs, including strict liability for products unreasonably dangerous per se, by design or for failure to warn, and pre-comparative-fault virile share rules. A manufacturer is liable only if plaintiffs show frequent, regular exposure to its product, and prescription runs from the time a plaintiff has actual or constructive knowledge of an asbestos-related injury.
• Quick v. Murphy Oil Co. (4th Circuit, 1994). Where multiple causes are present, a defendant's asbestos-containing product is a cause in fact only if exposure to it was a substantial contributing factor, and not every asbestos exposure meets that standard; a trivial exposure does not.

Maine

• Coffin v. Ametek, Inc. (2020). An expert's opinion that a plaintiff's cumulative asbestos exposure caused his mesothelioma rests on good grounds and is admissible under Daubert, and challenges to its factual basis or its power to prove a particular defendant's liability go to weight and are for cross-examination. The same Daubert reliability standard applies to FELA claims.

Maryland

• Irwin Industrial Tool Company v. Pifer (2022). Items bought online and offered as exemplars are authenticated under Maryland Rule 5-901 if a reasonable juror could find by a preponderance of the evidence, from circumstantial evidence, that they are what the proponent claims, and no chain of custody back to manufacture is required. An appellate court ordinarily reviews a summary judgment only on the grounds the trial court explicitly relied on.
• Coates v. Ford Motor Company (2020). A trial court has wide discretion to deny summary judgment and let a case go to trial, and a jury's weighing of conflicting expert evidence on exposure will not be disturbed. Res judicata and collateral estoppel do not apply where an appellate reversal and remand left no final judgment on the issues.
• Ament v. John Crane-Houdalille, Inc. (2019). Under Maryland Rule 5-702, an expert's opinion needs a sufficient factual basis, and a trial court does not abuse its discretion in striking causation testimony when the expert cannot tie the fact witnesses' testimony to the defendant's product. The appellant must pinpoint specific errors on appeal.
• Dugger v. Union Carbide Corporation (2019). Even if late expert reports are not true supplements under Rule 26(e), they need not be excluded under Rule 37(c)(1) when the late disclosure is harmless, judged by factors such as surprise, ability to cure, trial disruption, importance and explanation.