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.

New York

• Moutal v. AO Smith Water Prods. Co. (2022). A defendant seeking summary judgment on specific causation must make a prima facie showing, such as a study of the plaintiff's actual exposure levels with its product in his work setting; a reconstructed dose estimate without such a study is not enough, and pointing to gaps in the plaintiff's proof does not meet that burden.
• Nemeth v. Brenntag N. Am. (2022). In toxic tort cases a plaintiff must use expert testimony based on generally accepted methodologies to show exposure to levels of the toxin sufficient to cause the illness. Exact quantification is not required, but the proof must give a scientific expression of the plaintiff's exposure level. Statements that exposure was low or significant, a sentinel-event theory, and regulatory limits do not meet that requirement.
• Niedert v. Amchem Prods., Inc. (2022). A summary judgment movant must first make a prima facie showing on causation; a general dose-reconstruction analysis that does not address the plaintiff's specific exposure, together with a competing expert view on asbestos and lung cancer, leaves a factual dispute for a jury.
• Pomponi v. AO Smith Water Prods. Co. (1st Dept., 2022). To show specific causation, a plaintiff must offer evidence tying the level of asbestos exposure to an amount known to cause the illness; evidence that a worker was in asbestos-laden dust, without a correlation between exposure levels and a harmful dose, is insufficient.
• Pritt v. Air & Liquid Systems Corporation (2022). Under maritime law, a plaintiff must show exposure to the defendant's own product and that the product was a substantial factor in causing the disease. Minimal exposure, or exposure only to another maker's component, is not enough. Maritime law also allows loss of consortium and punitive damages in a non-Jones Act claim.
• Theophil v. AO Smith Water Prods. Co. (2022). A defendant seeking summary judgment on specific causation must show actual exposure levels tied to its own product and the plaintiff's work setting; an expert's worst-case theoretical assumptions, such as those based on the inverse square law, do not meet that burden.
• Viglietta v. Asbestos Corp., Ltd. (Erie, 2022). Under Nemeth, an expert need not quantify exposure precisely if the methods used are generally accepted in the scientific community. Where a defendant invokes CPLR Article 16 apportionment, the plaintiff may invoke the reckless disregard exception of CPLR 1602(7).
• Zicklin v. Bergdorf Goodman Inc. (2022). Conflicting expert opinions on whether the product caused the plaintiff's mesothelioma raise issues of fact and credibility that cannot be resolved on summary judgment, and a plaintiff's alleged other asbestos exposure from cigarettes does not eliminate those fact issues.
• Berger v. Aerco Intl., Inc. (2021). Conflicting expert evidence on whether talc contained asbestos and caused the disease raises fact issues defeating summary judgment on causation. A bulk supplier that adequately warned the intermediary manufacturer, a sophisticated user, has no duty to warn the end user of the intermediary's finished products.
• Faivor v. Amchem Prods., Inc. (2021). A defendant seeking summary judgment in an asbestos case must first show its product could not have contributed to the plaintiff's disease. Conflicting expert opinions on whether chrysotile causes peritoneal mesothelioma raise fact issues for a jury. A summary judgment motion must also include the statement of material facts required by 22 NYCRR 202.8-g.
• Greene v. Amchem Prods., Inc. (2021). Conflicting expert opinions on whether chrysotile exposure from the defendant's product can cause mesothelioma raise credibility issues that cannot be resolved on summary judgment. A Frye hearing is not warranted where the defendant has not shown the plaintiff's expert methods lack general acceptance in the relevant scientific community.
• Davis v. CompuDyne (In re Eighth Judicial District Asbestos Litigation) (Erie, 2021). Expert reports attached to an attorney affirmation are inadmissible hearsay and cannot meet a movant's initial summary judgment burden; competing expert opinions on causation present a jury question.
• Phelps v. CBS Corporation (2021). Under maritime law and Air & Liquid Systems v. DeVries, a boiler manufacturer has a duty to warn about third-party asbestos parts only if its product requires incorporation of the part, and plaintiff offered no admissible evidence that the boilers required asbestos insulation.
• Pistone v. American Biltrite, Inc. (2nd Dept., 2021). In toxic tort cases an expert opinion must show exposure, general causation and specific causation, and conflicting expert opinions on these points raise a credibility question for the jury rather than permitting summary judgment.
• Sprague v. Abb, Inc. (2021). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's injury; it cannot meet that burden merely by pointing to gaps in the plaintiff's proof.
• Lamenta v. American Biltrite (In re New York City Asbestos Litigation) (2020). In a toxic tort case, expert opinion must show both that the toxin can cause the injury and that the plaintiff was exposed to enough of it to do so (the Parker and Cornell standards, which the court applied to asbestos cases). Conclusory expert reports and an unsworn expert report cannot raise a fact issue against a defendant's prima facie showing.
• Luca v. Whittaker, Clark and Daniels (In re New York City Asbestos Litigation) (2020). A defendant cannot win summary judgment in an asbestos case by pointing to gaps in the plaintiff's proof; it must show its product could not have contributed to the illness. Conflicting expert reports on general and specific causation raise fact issues that cannot be resolved on motion papers.
• Luca v. American Int'l Indus. (In re New York City Asbestos Litigation) (2020). A defendant cannot win summary judgment in an asbestos case by pointing to gaps in the plaintiff's proof, and conflicting expert reports on general and specific causation raise credibility issues that a court cannot resolve on motion papers.
• Peterson v. Vanderbilt Mineral (In re New York City Asbestos Litigation) (2020). A court may grant renewal in the interest of justice to allow expert reports in proper form where the failure to submit them earlier was inadvertent and the other side shows no prejudice. Conflicting expert reports on general and specific causation raise fact issues that bar summary judgment, and a venue change motion served long after the answer is untimely.
• Peterson v. Vanderbilt Minerals (In re New York City Asbestos Litigation) (2020). In asbestos cases under New York toxic tort law, plaintiffs must offer admissible expert evidence of exposure sufficient to cause the disease. Unsworn or improperly affirmed expert reports cannot defeat summary judgment, and reports filed after the motion was submitted will not be considered.
• Rivera v. Ericksson (In re New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's illness, and it cannot do so with a conclusory affidavit, an unsworn expert report, or by pointing to gaps in the plaintiff's proof.
• Salzano v. Kaiser Gypsum Co. (In re New York City Asbestos Litigation) (2020). A witness's account of a co-worker's contemporaneous statement naming the joint compound brand can qualify as a present sense impression if corroborated, such as by the manufacturer's prior interrogatory answers, which raises a fact issue on product identification.
• Richards v. American Biltrite (Matter of Eighth Jud. Dis. Asbestos) (Erie, 2020). In asbestos cases a defendant seeking summary judgment must first unequivocally show its product could not have contributed to the plaintiff's disease. Even if it did, competing expert affidavits on general and specific causation raise fact issues for trial.
• Stock v. Jenkins Bros. (Matter of Eighth Judicial District Asbestos Litigation) (4th Dept., 2020). A plaintiff need not quantify exposure precisely or use dose-response data to prove specific causation; evidence that the plaintiff was exposed to levels of the agent known to cause the harm, including expert opinion drawing on studies of similar work, suffices. A verdict sheet need not list loss of services and loss of society as separate items.
• Matter of New York City Asbestos Litig. v. Air & Liquid Sys. Corp. (1st Dept., 2020). Expert testimony that visible dust from gaskets known to contain 50% to 85% asbestos necessarily contained enough asbestos to cause mesothelioma can establish specific causation without a quantified exposure level. The court treated Matter of New York City Asbestos Litig. (Juni) as turning on its own particular record.
• Stiglitz v. Homasote Co. (Matter of New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must unequivocally establish that its product could not have contributed to the plaintiff's injury; pointing to gaps in the plaintiff's proof, or relying on conclusory expert and corporate affidavits contradicted by its own interrogatory answers, does not meet that burden.
• Nemeth v. Brenntag N. Am. (1st Dept., 2020). Under Parker v Mobil Oil Corp., a toxic tort plaintiff need not precisely quantify exposure, and an estimate based on the plaintiff's own use history plus testing of the product's fiber release can support specific causation. Where the trial court effectively apportioned 0% to settling defendants who were left off the verdict sheet, General Obligations Law § 15-108 offsets are computed by the aggregate method.
• Olson v. Brenntag N. Am., Inc. (2020). A jury could rationally find that J&J's talcum powders exposed the plaintiff to asbestos, that this exposure caused her mesothelioma, and that J&J's conduct warranted punitive damages. The compensatory award was excessive, and a 12:1 punitive-to-compensatory ratio was unconstitutionally excessive, so the court capped it at 7:1.
• Phelps v. CBS Corporation (2020). An expert may give specific-causation and exposure opinions in response to hypothetical questions based on facts established elsewhere at trial, and challenges to the factual assumptions go to weight rather than admissibility. Testimony from the worker, a naval expert and an industrial hygienist was enough to create a genuine factual dispute on whether exposure from Crane Co. valves was a substantial factor in causing mesothelioma.
• Schrank v. Amchem Prods., Inc. (2020). In a toxic tort asbestos case, plaintiffs' expert opinions must show exposure to sufficient levels of asbestos from the particular defendant's product to cause the disease. Opinions that give no basis for estimating exposure from that defendant's products do not raise a triable issue on specific causation.
• Alleyne v. AO Smith Water Prods. Co. (2019). A party seeking an open commission for out-of-state discovery must make a strong showing that the testimony is necessary and unavailable from other sources, and must show the witnesses would not cooperate or that a commission is needed. Overbroad subpoenas must be limited to the stated purpose.
• Billok v. Union Carbide Corp. (3rd Dept., 2019). Under CPLR 3117, a deposition taken in another action may not be used against a party who was not present or represented at it, and a witness who never testified in this action cannot be impeached with a different deposition. Admitting the 2007 testimony on the central issue was not harmless error.
• Lattanzio v. Rockwell Automation (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product did not contribute to the plaintiff's illness, and pointing to gaps in plaintiff's proof is not enough. Conflicting expert reports on general and specific causation raise fact issues that cannot be resolved on motion papers.
• Rothlein v. American Int'l Indus. (In re New York City Asbestos Litigation) (2019). A company that buys another's assets is not liable for the seller's torts unless one of four exceptions applies (assumption, merger, mere continuation, fraud). A defendant cannot win summary judgment on causation by pointing to gaps in plaintiff's proof; it must show its product could not have contributed to the illness.
• Rosen v. Fisher Scientific Co. (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof and must make a prima facie showing that its product did not contribute to the disease; conflicting expert evidence on general and specific causation under Parker and Cornell raises fact issues that cannot be resolved on papers.
• Alleyne v. Chanel (In re New York City Asbestos Litigation) (2019). A party objecting to discovery as a trade secret need only make a minimal, non-conclusory showing, after which the burden shifts to the requesting party to show the information is indispensable and cannot be obtained any other way; until other possibilities are exhausted, the trade secret need not be disclosed.
• Carlstrand v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof, and conflicting expert reports on whether chrysotile in vinyl asbestos floor tile can cause mesothelioma raise credibility and fact issues that cannot be resolved on papers.
• Carlstrand v. Mannington Mills (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in the plaintiff's proof, and conflicting expert opinions on general and specific causation raise credibility issues of fact that cannot be resolved on motion papers.
• Surace v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiffs' proof. Conflicting expert reports on general and specific causation, applying Parker and Cornell, raise fact issues that cannot be resolved on the papers.
• Djokic v. Steel Grip (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof; it must show its product did not contribute to the disease, and conflicting expert opinions on general and specific causation raise fact issues. A consortium claim fails where the exposure preceded the marriage.
• Hernandez v. Whittaker, Clark & Daniels (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment in an asbestos case by pointing to gaps in plaintiff's proof; it must make a prima facie showing that its product could not have contributed to the illness, and conflicting expert evidence on general and specific causation raises fact issues.
• Alleyne v. Chanel (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must make a prima facie showing, through admissible evidence, that its product could not have contributed to the plaintiff's illness; pointing to gaps in plaintiff's proof, or relying on an attorney's affirmation without expert or corporate-representative proof, is not enough.
• Epstein v. Exxon Mobil Corp. (In re New York City Asbestos Litigation) (2019). Under New York choice-of-law rules, a causation standard is a conduct-regulating rule governed by the law of the place of the tort. A summary judgment movant must make its own prima facie showing and cannot rely on gaps in the plaintiff's proof or on expert evidence first submitted in reply.
• Gayoso v. Nissan North America (In re New York City Asbestos Litigation) (2019). A personal jurisdiction defense is waived if the defendant does not assert it with specificity in its answer, and general denials do not preserve it. Where the parties' experts rely on conflicting studies, issues of fact on general and specific causation preclude summary judgment.
• Srica v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiffs' proof; it must make a prima facie showing that its product did not contribute to the disease, and conflicting expert reports on causation raise fact issues for trial.
• Chalco v. Burnham (In re New York City Asbestos Litigation) (2019). A defendant in an asbestos case must show its product could not have contributed to the plaintiff's injury, and plaintiffs must then show actual exposure to asbestos from that product; the mere presence of the defendant's boilers is not enough.
• Young v. Avon Prods. (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment in an asbestos case by pointing to gaps in the plaintiff's proof, and conflicting expert evidence on general and specific causation raises fact issues for trial. New York does not recognize an independent cause of action for civil conspiracy.
• Albin v. Mannington Mills (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in the plaintiff's proof. It must make a prima facie showing that its product did not contribute to the illness, and conflicting expert affidavits on general and specific causation raise fact issues for trial.
• Linsky v. Mannington Mills (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof; it must make a prima facie showing that its product did not contribute to the disease, and conflicting expert affidavits on causation raise credibility issues of fact that cannot be resolved on papers.
• Young v. Whittaker, Clark & Daniels (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof; conflicting expert affidavits on general and specific causation raise issues of fact for trial, and plaintiffs need only show facts from which liability may reasonably be inferred.