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.

Montana

• US v. Grace (2006). Expert testimony that states a legal conclusion about compliance with a statute (here TSCA 8(e)) is excludable and unhelpful to the jury, and a motion in limine cannot serve as a summary judgment on whether a reporting requirement was violated in a criminal case.

Nebraska

• Olivotto v. DeMarco Bros. Co. (2007). Under the last injurious exposure rule, liability for an occupational disease falls on the employer whose work exposed the employee in a way that could cause the disease. A worker who retired decades before disability suffered no loss of earning capacity and gets no weekly indemnity benefit.

Nevada

• Potter v. Crane Co. (2021). Under Rule 37(c)(1), late expert disclosures may be allowed if substantially justified or harmless, judged by prejudice, ability to cure, disruption of trial, and bad faith; the party that disclosed late bears the burden.

New Jersey

• Barden v. Brenntag North America, Inc. (2023). A trial court must act as gatekeeper for expert testimony, assessing the expert's methodology and underlying data, with a hearing where warranted. Admitting untested expert opinions without doing so is harmful error that requires a new trial.
• Lanzo v. Cyprus Amax Minerals Company (2021). A trial court must act as gatekeeper under Accutane and the Daubert factors and assess the methodology and data behind expert opinions on novel causation theories, and admitting such opinions without that review can require a new trial. An adverse inference instruction against one defendant for spoliation can be unduly prejudicial to a co-defendant and require severance.
• In re Johnson & Johnson Talcum Powder Products (2020). Expert testimony is admissible under Rule 702 if it rests on reliable methods, and disagreements over how to interpret studies go to weight rather than admissibility. Opinions that go beyond the supporting data, such as extrapolating from an in vitro study to human cancer causation, are excluded.
• Fishbain v. Colgate-Palmolive Company (2019). A trial court does not abuse its discretion by excluding tangible samples whose chain of custody over about forty years is not shown under N.J.R.E. 901. Evidentiary errors, such as hearsay from a corporate representative and an FDA letter, are not grounds for reversal unless clearly capable of producing an unjust result.
• Brandecker v. E&b Mill Supply Co. (2018). After a final judgment is entered, earlier interlocutory orders can be challenged under Rule 4:50-1, and newly discovered evidence (here, samples the defendant withheld in discovery) can justify vacating the judgment if it was not cumulative, could not have been found with due diligence, and would probably change the result.
• Kaenzig v. Charles B. Chrystal Company, Inc. (2015). In an asbestos failure-to-warn case, a plaintiff must prove product-defect causation and medical causation, and exposure is a substantial factor if it meets the frequency, regularity and proximity test. Discovery of a non-testifying consulting expert's facts or opinions requires exceptional circumstances.
• Haas v. 3M Company (2014). Under New Jersey's frequency, regularity and proximity test, a plaintiff must show exposure to an asbestos-containing component of the defendant's product; speculation does not suffice. A contractor meeting the three Boyle prongs is shielded from both design defect and failure-to-warn claims where the specifications are silent on warnings.
• Anderson v. AJ Friedman Supply Co. (2010). An employer shielded by workers' compensation exclusivity for an employee's direct occupational exposure can still be sued under a dual persona theory for a separate duty owed to the employee's spouse for take-home asbestos exposure. Fault need not be allocated to the employer in its capacity as the plaintiff's own employer.
• Buttitta v. Allied Signal, Inc. (2010). In a mesothelioma case, the frequency, regularity and proximity test is applied in light of expert evidence that the disease can follow minimal and infrequent exposure, so brief but regular work near a defendant's asbestos product can support a jury finding of medical causation.
• Sarkozy v. AP Green Industries, Inc. (2008). A jury's damages award stands unless it is so disproportionate that it shocks the judicial conscience. Wrongful death damages for a parent's lost guidance need no proof of dollar value, and an asbestos plaintiff with a manifest injury may recover medical monitoring costs. Evidentiary and summation errors that did not prejudice the defendant are harmless.
• Higgins v. Owens-Corning Fiberglas (1995). A jury may apportion fault only among parties to the suit, so placing a non-party that had not settled on the verdict sheet was reversible error. Future consequences of an existing injury are compensable if reasonably probable, and the plaintiff must be allowed to present expert evidence of probable progression of his asbestosis.
• Ripa v. Owens-Corning Fiberglas (1995). A defendant is bound only for the share of liability that remains after a settling party's agreed percentage is removed, so the judgment must be molded to that share. Admitting damaging documents against a defendant without proof it received them, and without the required conditional-relevance jury charge, is error that can taint a punitive award.
• Landrigan v. Celotex Corp. (1991). Under Rubanick, an expert's causation opinion in toxic-tort cases is admissible if based on sound, reliable methodology, and a qualified non-physician such as an epidemiologist may testify to specific causation; a plaintiff may proceed on both strict liability and negligence without being forced to elect.
• Mauro v. Raymark Industries, Inc. (1989). A plaintiff with a present asbestos-related injury cannot recover damages for an enhanced risk of future cancer unless the cancer is reasonably medically probable. Medical surveillance costs and emotional distress damages remain recoverable, and a later suit is allowed if cancer develops.
• Millison v. EI du Pont de Nemours (1988). The fraudulent-concealment verdict could rest on circumstantial evidence and a jury could treat defendants' silence as evidence. OSHA citations are hearsay and are not admissible as public records or business entries, but their admission without a limiting instruction was harmless here.
• Devlin v. Johns-Manville Corp. (Law Division, 1985). A person with asbestosis cannot recover damages for an enhanced risk of cancer alone when cancer cannot be shown to be reasonably probable. Emotional distress from that risk and the cost of medical monitoring are recoverable, and asbestosis and later cancer are separate diseases, so a later cancer claim is not barred.

New York

• Keller v. Exxonmobil Oil Corporation (2025). Under Rule 702, a specific-causation expert opinion that rests on an assumed, unquantified asbestos exposure and ignores an obvious alternative cause (radon) is inadmissible, and without it a Jones Act plaintiff whose injury has multiple possible causes cannot prove causation. The relaxed Jones Act causation burden does not relax the Rule 702 admissibility standards.
• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (1st Dept., 2025). Expert testimony from an industrial hygienist and a thoracic surgeon sufficed to establish specific causation, and the compensatory, consortium and punitive awards and the 15% fault allocation to the plaintiff for smoking were upheld as reasonable and supported by the evidence.
• Caligiuri v. AO Smith Corp. (2024). Under the Frye standard, the party offering expert testimony must show its methodology is generally accepted, and a defendant who offers no contrary expert and relies only on other cases has not shown otherwise. Objections that the experts failed to show sufficient exposure go to the weight of the testimony and plaintiff's prima facie case at trial, not to admissibility.
• Caligiuri v. AO Smith Corp. (2024). A defendant seeking summary judgment on causation must affirmatively establish that its product could not have contributed to the plaintiff's injury; competing expert causation evidence raises a question of fact that precludes summary judgment.
• Caligiuri v. AO Smith Corp. (2024). A defendant seeking summary judgment in an asbestos case must affirmatively prove as a matter of law that its product could not have contributed to the plaintiff's illness; an industrial hygienist's exposure opinion without medical causation evidence does not meet that burden, and competing expert evidence raises a fact question.
• Gref v. American International Industries (2024). Under Rules 26(e) and 37(c)(1), preclusion of late-disclosed expert material is a harsh remedy. It was not warranted where the delay was harmless, discovery remained open and a continuance and reopened deposition could cure any prejudice.
• Gref v. American International Industries (2024). The court said it would decide the motion to preclude Plaintiff's supplemental expert disclosures before ruling on Colgate-Palmolive's request for more time to depose Dr. Moline, and it terminated the request for more time (ECF No. 376) for the time being.
• Gref v. American International Industries (2024). Sanctions under a court's inherent power require clear evidence that the challenged conduct was entirely without color and motivated by improper purposes; a colorable factual basis for the discovery sought defeats a bad-faith finding.
• Matter of Johnson & Johnson v. Northwell Health Inc. (1st Dept., 2024). Subpoenaed identities of subjects of scholarly articles on talc and mesothelioma are relevant to the credibility of the articles and are not shielded by HIPAA or the Common Rule. The party opposing disclosure bears the burden of proving a protective order applies, and production was not unduly burdensome.
• McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig.) (1st Dept., 2024). A plaintiff shows specific causation under Nemeth by expert testimony based on generally accepted methodologies that offers a scientific expression of exposure level, such as quantitative exposure estimates backed by epidemiological risk data. The pain and suffering award did not deviate materially from reasonable compensation.
• English v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2024). Where a foreign resident's exposure occurred mostly in another state, that state's law (here Texas) governs proof of specific causation. Under Texas law, epidemiological evidence can establish specific causation only if it shows the product more than doubled the plaintiff's risk.
• Seen v. Kaiser Gypsum Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2024). A pain and suffering award that deviates materially from reasonable compensation under CPLR 5501(c) must be reduced or retried, and under General Obligations Law § 15-108 settlement amounts paid by settling defendants are deducted from the total award, with specified offsets for a settling defendant on the verdict sheet.
• Pefanis v. AO Smith Water Prods. Co. (2024). On summary judgment in an asbestos case, the defendant must unequivocally establish that its product could not have contributed to the plaintiff's injury; conflicting testimony and competing expert opinions raise fact issues that preclude judgment.
• Pefanis v. AO Smith Water Prods. Co. (2024). A defendant seeking summary judgment on causation must affirmatively prove its product could not have contributed to the injury. Competing expert evidence on whether the product released asbestos is a battle of the experts that raises fact issues, as does evidence that a talc supplier knew of contamination and gave no warning.
• Pira v. Air & Liquid Sys. Corp. (2024). A defendant seeking summary judgment on causation must affirmatively prove as a matter of law that there was no causation, not merely argue the plaintiff cannot prove it; competing expert evidence on exposure and causation raises a fact question.
• Savianeso v. Aerco Intl., Inc. (2024). A moving defendant must affirmatively show its product could not have contributed to the plaintiff's disease; the court found Bakers Pride met that burden and plaintiff's expert, who did not quantify the secondhand exposure, did not raise a factual issue.
• Tippin v. 3M Co. (2024). A defendant seeking summary judgment in a toxic tort case must affirmatively show its product could not have contributed to the injury, and competing expert causation evidence presents a fact question. Punitive damages require intentional, unreasonable disregard of a known or obvious risk with conscious indifference, which was not shown here.
• Tippin v. 3M Co., Alcat (1st Dept., 2024). A plaintiff opposing summary judgment must offer evidence of exposure to the defendant's product at levels sufficient to cause the disease, and an expert's illustrative estimate of lifetime exposure, with no actual dose calculation, does not raise a fact issue on causation.
• Wagner v. Aerco Intl., Inc. (2024). A defendant seeking summary judgment on causation must unequivocally establish that its product could not have contributed to the plaintiff's illness; a study of cutting and scoring tiles does not do so where the plaintiff also sanded the tiles.
• Campise v. Arkema, Inc. (Erie, 2023). Under the Parker and Nemeth test, an expert who estimates exposure levels from peer-reviewed data and compares them to levels shown to cause mesothelioma raises a triable issue of causation without precise quantification. Punitive damages require proof of recklessness or conscious disregard of others' rights.
• McWilliams v. AO Smith Water Prods. Co. (2023). A verdict is set aside as against the weight of the evidence only if no valid line of reasoning could lead rational jurors to it, and pain-and-suffering awards receive great deference. Counsel who submit false discovery responses and let an expert give false testimony uncorrected engage in sanctionable frivolous conduct under 22 NYCRR 130-1.1.
• Munoz v. AO Smith Water Prods. CO (2023). A defendant seeking summary judgment must unequivocally establish that its product could not have contributed to the plaintiff's injury; arguing that the plaintiff cannot prove causation is not enough, and a non-case-specific expert affidavit does not meet that burden.
• Petro v. Aerco Intl., Inc. (2023). A jury verdict may be set aside only if no valid line of reasoning and permissible inferences could lead rational jurors to the result. Disputed facts, credibility and the weight of expert testimony are for the jury, and expert causation testimony needs enough specificity about exposure but not a precise numerical dose.
• Rodney v. Akebono Brake Corp. (2023). Post-note-of-issue discovery requires unusual or unanticipated circumstances, and a defendant seeking physical testing of a plaintiff's tissue must show the procedure's medical importance, safety, relevance and need, which outweighs the plaintiff's health interests.
• Sason v. Dykes Lbr. Co. (2023). On summary judgment a defendant must affirmatively prove, as a matter of law, that its product could not have contributed to the plaintiff's disease; the Nemeth post-trial standard does not apply, and conflicting expert evidence raises a triable issue of fact.
• Sason v. Dykes Lumber Co., Inc. (1st Dept., 2023). To establish specific causation, a plaintiff must give a scientific expression linking actual asbestos exposure to a level known to cause mesothelioma. Competing expert evidence on that point raises a fact issue that defeats summary judgment.
• Seen v. Kaiser Gypsum Co., Inc. (2023). A jury verdict in a toxic tort case stands where the experts tied the decedent's exposure to historical industrial hygiene data and studies showing sufficient exposure to cause mesothelioma, as Nemeth II requires. A pain-and-suffering award within the range of awards in similar cases is not excessive.
• Cioni v. Avon Prods., Inc. (2022). A moving defendant must itself establish a prima facie case on specific causation; relying on worst-case-scenario assumptions without establishing the decedent's actual exposure does not meet that burden. Punitive damages in asbestos litigation require conscious indifference to a known or obvious risk, which was not shown given Colgate's testing.
• Gartner v. AO Smith Water Prods. Co. (2022). A summary judgment movant must affirmatively prove its entitlement to judgment rather than point to gaps in the opponent's proof. A conclusory affidavit lacking personal knowledge, and exposure evidence that does not address the specific product and work setting, does not meet that burden.
• Katechis v. Allied Bldg. Prods. Corp. (2022). A defendant moving for summary judgment on causation must unequivocally establish that its product could not have contributed to the plaintiff's injury; an industrial hygienist's dose opinion does not establish the absence of medical causation, and plaintiff's medical expert reports raise a triable issue.
• Olson v. Johnson & Johnson (Matter of New York City Asbestos Litig.) (1st Dept., 2022). A plaintiff in a toxic tort case must present expert testimony giving a scientific expression of the level of exposure sufficient to cause the disease; testimony that exposure was a significant amount above normal background levels is insufficient.