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.

Maryland

• Dugger v. Union Carbide Corporation (2019). Expert opinion resting only on the 'each and every exposure' theory is inadmissible under Daubert. Opinions that consider the frequency, regularity and proximity of the plaintiff's specific exposure and rest on reliable studies are admissible, and challenges to the underlying studies go to weight.
• Arbogast v. Georgia-Pacific LLC (2017). An industrial hygienist's exposure and risk-assessment opinion based on sound, recognized scientific methodology meets Federal Rule of Evidence 702 and is admissible as helpful to the trier of fact.
• Rockman v. Union Carbide Corp. (2017). Expert opinions that any asbestos exposure, however small, causes mesothelioma, or that tie low-level chrysotile bystander exposure to peritoneal mesothelioma without supporting data, do not satisfy Rule 702 and Daubert. Under Maryland's Balbos factors, brief bystander exposures during three short home repairs were not a substantial factor in causing the disease as a matter of law.
• Rockman v. Union Carbide Corp. (2017). Where a plaintiff offers no opposition and no supporting evidence, Maryland law bars these claims: warranty claims accrue on tender of delivery, market share liability is not recognized, and punitive damages require clear and convincing proof of actual malice.
• Arbogast v. AW Chesterton Co. (2016). A plaintiff must produce evidence that the specific product encountered actually contained asbestos. An expert opinion resting on an unsupported assumption that it did lacks sufficient facts or data under Rule 702(b).
• Arbogast v. AW Chesterton Co. (2016). A plaintiff must offer evidence from which a jury can reasonably infer that a defendant's product actually contained asbestos before Maryland's frequency, regularity, proximity test applies; an expert opinion resting on a worker's unsupported belief that a product contained asbestos lacks sufficient facts or data under Rule 702.
• National Union Fire Insurance Company OF Pittsburgh, PA. v. Porter Hayden Company (2014). Expert testimony is excluded under Rule 702 when it rests on 'logic' and experience without reliable methodology or sufficient facts, or when it applies a legal rule the court has rejected. Challenges based on bias or data limits go to weight, not admissibility.
• Dixon v. Ford Motor Company (2013). An expert's opinion that each exposure to asbestos contributed to mesothelioma need not undergo Frye/Reed review when it rests on evidence of repeated, high-intensity exposure to the defendant's product. A trial court abuses its Rule 2-535 discretion by overturning a jury verdict that the evidence reasonably supported.
• Wallace & Gale Asbestos Settlement Trust v. Carter (2013). Use plaintiffs in a Maryland wrongful death action must timely join the action to recover, and relation back cannot save their claims once the limitations period has run. Damages for a single harm such as lung cancer may be apportioned between asbestos and smoking where there is a reasonable basis for determining each cause's contribution, and apportionment is a causation question distinct from comparative fault.
• Dixon v. Ford Motor Company (2012). An expert's opinion that every asbestos exposure is a 'substantial contributing cause' of mesothelioma, with no estimate of exposure or risk, does not help the jury under Maryland Rule 5-702. Where probabilistic causation is the accepted scientific theory, quantitative epidemiological evidence is required.
• Georgia-Pacific v. Farrar (2012). A manufacturer of an asbestos-containing product owes a duty to warn those within the foreseeable zone of danger, including a household member exposed through dust on a bystander worker's clothing. Maryland's frequency, proximity and regularity test governs whether bystander exposure is a substantial factor.
• Crane v. Linkus (2010). Expert testimony that a defendant's unencapsulated asbestos product released respirable fibers above ambient levels is not required; lay testimony of visible dust from regular handling, plus expert testimony on dose-response and no safe threshold, can let a jury infer substantial-factor causation. A defendant is not credited for payments from bankrupt entities absent proof of tortfeasor status or trust terms providing a reduction.
• John Crane, Inc. v. Puller (2006). A claim for asbestosis and a claim for mesothelioma are separate claims, so the voluntary dismissal of the earlier asbestosis suit did not bar the later suit by collateral estoppel because no fact was actually litigated. In asbestos cases a loss of consortium claim arises when the underlying injury claim arises (the exposure test), so Maryland's non-economic damages cap does not apply to it when it does not apply to the underlying survival action.
• Garlock v. Gallagher (2003). Plaintiffs are not parties to defendants' cross-claims, so the actual parties could stipulate to dismiss them under Rule 2-506 and the trial court could not nullify the dismissal. A defendant that settled by a pro tanto release and is not a party to the primary case is not counted as a share when dividing the verdict among joint tort-feasors.
• Royal Ins. Co. of America v. Miles & Stockbridge (2001). Expert testimony is required to show that a lawyer's settlement advice breached the standard of care, and a claimant whose own experts disclaim a breach cannot show negligence as a matter of law. A malpractice claimant must also prove that the lawyer's alleged error caused harm.
• Hollingsworth v. Connor (2000). A nonresident component maker that sold its product to another company outside the forum, and did not direct activity at the forum, lacks minimum contacts even if it knew the product would be sold there. For Maryland's noneconomic damages cap, a mesothelioma cause of action arises when the disease is contracted, not at the first cellular change.
• Owens Corning v. Bauman (1999). A cause of action for a latent asbestos-related disease such as mesothelioma "arises" under the noneconomic damages cap when the disease comes into existence, not when it is diagnosed or manifests symptoms. When that date is disputed, Article 23 of the Maryland Declaration of Rights requires the jury to decide it, upon a proper request.
• Porter Hayden Company v. Wyche (1999). The statutory cap on noneconomic damages applies presumptively, and plaintiffs bear the burden of producing probative evidence that the disease arose before the cap's July 1, 1986 effective date; a hedged expert estimate that did not show the cancer pre-dated that date was insufficient.
• ACandS v. Abate (1998). A plaintiff may use other witnesses to identify the asbestos products he was exposed to, but must show regular, frequent exposure near the specific product's use, and fiber drift across a workplace is not enough. A contractor in a mixed sale-and-service transaction is not strictly liable if its predominant purpose was service, so the jury must be instructed on that test.
• Ford Motor v. Wood (1998). A bystander plaintiff must show frequent, regular exposure to the defendant's own asbestos products, and a vehicle maker has no duty to warn about replacement brake parts it did not make, sell or place in commerce. Evidence of exposure to other asbestos products is admissible as an alternative cause only if the proffered exposures could have caused the disease.
• US Gypsum v. Baltimore (1994). A building owner seeking asbestos removal costs may sue in tort because the defect creates a substantial risk of personal injury, and a post-sale duty to warn applies. Punitive damages require clear and convincing proof that the defendant actually knew, at the time of sale, that its product endangered ordinary building users.

Massachusetts

• Ciolino v. Keystone Shipping Co. (2024). A late expert disclosure by a plaintiff's treating physicians was substantially justified and not excluded under the Esposito factors. Statements by a shipowner's officers about asbestos aboard the vessel are non-hearsay party admissions. Disputed facts on asbestos presence and causation preclude summary judgment on Jones Act negligence and unseaworthiness claims.
• Pritt v. John Crane, Inc. (2022). A magistrate judge's pretrial ruling is set aside only if clearly erroneous or contrary to law. Challenges to an expert's reliability and interpretation of military specifications go to weight and credibility for the jury, not admissibility, under Rule 702 and Daubert.
• Thayer v. Pittsburgh-Corning Corporation (1997). Under Vassallo, a defendant is not liable under the implied warranty of merchantability for failure to warn of risks not reasonably foreseeable at the time of sale, so state of the art evidence is relevant. Lack of privity is judged by the date of injury, not the date of exposure or sale.
• Eagle-Picher Ind. v. American Employers'ins. (1989). When an insurer fails to prove that claim-by-claim review of underlying asbestos claims is feasible, stare decisis applies and the First Circuit's six-year presumptive rollback from diagnosis fixes the policy attachment date for asbestosis and pleural claims.

Michigan

• Chapin v. A & L Parts, Inc. (2007). A trial court acting as gatekeeper under MRE 702 and MCL 600.2955(1) need not resolve genuine scientific disputes or admit only uncontested evidence. It does not abuse its discretion by admitting an expert opinion that is rationally derived from a sound foundation, even if epidemiological studies do not support it.
• Allen v. Owens-Corning Fiberglas Corp. (1997). Evidence of a plaintiff's exposure to other manufacturers' asbestos products is relevant to whether the defendant's product was a substantial factor in causing the injury, but its exclusion is harmless where the plaintiff's evidence independently showed substantial exposure to the defendant's product. A manufacturer who knew of asbestos harms must warn even if it did not know of the specific disease that resulted.

Minnesota

• Conda v. Honeywell International, Inc. (2018). Expert causation testimony was admissible and sufficient where the district court considered foundational reliability and the evidence supported the verdict. The current Minn. Stat. § 604.02, subd. 1 does not apply when the events giving rise to the claim occurred before August 1, 2003, even if the claim accrued later.
• Kath v. Burlington Northern R. Co. (1989). Failure to object at trial to a special verdict form or to refused instructions waives the objection on appeal. Averaging juror damage estimates is not misconduct without proof of an advance agreement to be bound by the average.

Mississippi

• Dickens v. A-1 Auto Parts & Repair Inc. (2021). Under Mississippi's asbestos causation test (exposure to a particular product, regularly, over an extended time, and in proximity), minimal exposure to a defendant's products and expert opinions that do not tie the disease to that defendant's products cannot create a genuine issue of fact. Without a valid compensatory claim, punitive damages claims also fail.
• Bedford v. American Honda Motor Co., Inc. (2020). Under the Mississippi Products Liability Act, asbestos plaintiffs must prove product identification, exposure to the defendant's product, and proximate cause through expert testimony; without evidence quantifying exposure to the defendant's product, summary judgment is proper.
• Union Carbide Corporation v. Nix (2014). A manufacturer's compliance with the OSHA warning wording does not make its warning adequate as a matter of law, and expert testimony is not required where a warning's adequacy is within a layperson's understanding. A judge's comments suggesting the compensatory award was too low can taint a punitive award submitted right after.
• City of Jackson v. Sandifer (2013). For a latent disease, the two-year workers' compensation limitations period runs from when the compensable injury becomes reasonably apparent, which is a fact question for the Commission. The Commission's causation finding stands if substantial, credible medical evidence supports it, and it resolves conflicts between medical experts.
• Brooks v. Stone Architecture (2006). Under Mississippi law, a claim for emotional distress from fear of future illness, brought before any disease appears, requires substantial exposure and medical or scientific evidence giving a rational basis for the fear. The plaintiffs' expert evidence was unreliable and could not supply that basis.

Missouri

• Hayden v. Cut-Zaven, Ltd. (Eastern District, 4th Division, 2020). A Commission finding that rejects a claimant's causation expert for lacking epidemiological studies misapplies Missouri law, which requires only medical evidence showing a probability that working conditions caused the disease. For occupational disease claims, the date of injury is when it becomes reasonably discoverable and apparent that an injury related to the exposure has been sustained.
• Ingham v. Johnson & Johnson (Eastern District, 2nd Division, 2020). Specific personal jurisdiction must be shown separately for each non-resident plaintiff's claim, and a parent corporation's jurisdictional contacts can be attributed to it from a subsidiary only through proven agency or alter ego. Expert testimony was admissible under section 490.065, and the evidence supported submitting causation and punitive damages to the jury.
• Urbach v. the Okonite Company (Eastern District, 2017). Under Wisconsin substantive law, co-worker testimony and expert bystander-exposure evidence can support a jury finding that a defendant's asbestos product was a substantial factor in causing mesothelioma. Wisconsin's wrongful-death cap applies after fault is apportioned, and the Wisconsin statute requiring assignment of asbestos trust claims before collecting a judgment is procedural, so Missouri law governs it.
• Foreman v. AO Smith Corp. (Eastern District, 4th Division, 2015). Under Maryland's frequency, proximity and regularity test, exposure to a defendant's asbestos products may be shown circumstantially, and the plaintiff's testimony plus expert testimony was enough for a jury. A settlement release makes a settling party a joint tortfeasor for statutory reduction only if it so provides, and an inconsistent verdict claim not raised before the jury is discharged is waived.
• Brauer Supply Company 542 (G) Asbestos Personal Injury Trust v. Atlanta International Ins. Co. (2012). Under Rule 702, the factual basis of an expert opinion generally goes to credibility rather than admissibility, and an opinion may rest on assumptions. Doubts about admissibility are resolved in favor of admitting the testimony.
• Goede v. Aerojet General Corporation (Eastern District, 3rd Division, 2004). A trial court may, under Rule 61.01, direct that ultimate facts be taken as established as a sanction for false discovery answers, and may apply different states' laws to liability and damages under the Restatement's most-significant-relationship test. Submissibility and instructional objections not raised at trial or in the directed-verdict motion at the close of all evidence are not preserved.
• Nugent v. Owens-Corning Fiberglas, Inc. (Eastern District, 3rd Division, 1996). A trial court has broad discretion over use of a deposition, and when a party uses part of it the other side may use the rest to explain. It also has discretion to limit expert testimony to each expert's area of expertise and to allow exhibits to be published to the jury in booklets.
• Clayton Center Assoc. v. WR Grace & Co. (Eastern District, 2nd Division, 1993). A building owner may recover in strict liability and negligence for asbestos contamination of the building from a fireproofing product. A claim accrues when asbestos fibers are released and a substantial, unreasonable risk of harm can be ascertained, and the economic loss doctrine does not bar recovery for damage to property other than the product itself.
• Harashe v. Flintkote Co. (Eastern District, 3rd Division, 1993). A buyer of a company's assets can be liable as successor under a de facto merger when it continues operations, pays with its own stock, and requires the seller to dissolve. Expert testimony that exposure to the defendant's product contributed causally to mesothelioma satisfies the substantial-factor causation test of Hagen.
• Hagen v. Celotex Corp. (1991). A plaintiff must show through expert testimony that each defendant's product was a substantial factor in causing the harm. Evidence showing only asbestos exposure in general, or that a defendant's product may have contributed, does not make a submissible case against that defendant.

Montana

• Gallegos v. BNSF Railway Company (2023). Spoliation sanctions are not warranted for destruction of evidence the movant was not entitled to obtain; a Rule 35 autopsy request requires an affirmative showing of good cause, which BNSF did not make.
• Wells v. BNSF Railway Company (2023). Under Montana's comparative-fault statute, a defendant may not assign fault to an unsettled nonparty such as W.R. Grace, and must prove a settled party's negligence with expert testimony where the issues are beyond lay knowledge. The HMTA and FRSA do not preempt state-law claims over transporting asbestos-bearing vermiculite ore.
• Atchley v. Louisiana Pacific Corp. (2018). A claimant first proves an occupational disease by showing that employment significantly aggravated or contributed to it. Under the last injurious exposure rule, liability then falls on the employer or insurer at risk when the worker was last exposed to the type and kind of conditions that could have caused the disease, even if earlier exposures were larger.
• Baeth v. Liberty NW Ins. Corp. (2014). Where an occupational disease involves successive employers, the last employer is liable if the claimant's work there was of the same type and kind as the conditions that could have caused the disease. Pursuing civil suits against other parties for the same exposure does not judicially estop a claimant from a workers' compensation claim.
• Johnson v. Liberty Northwest Insurance Corporation (2009). Under the last injurious exposure rule, the insurer for the last employer in whose employment the worker was injuriously exposed is liable for the whole occupational disease; about eight years of asbestos exposure at the last employer was enough to be injurious and sufficient to cause the disease.
• US v. Grace (2009). An expert may rely under Rule 703 only on facts or data of a type reasonably relied on by experts in the field, and Rule 703 cannot be used to put before the jury material excluded under Rule 403. Evidence of indoor releases and historical product testing may be used to show the propensity of fibers to become airborne, but not to prove post-1999 ambient fiber concentrations.