Category Archives: Expert Challenges

Plaintiff’s Expert’s Testimony Precluded and Summary Judgment Granted Where Expert Disclosure Was Untimely, the Expert Opinion Lacked Sufficient Factual Basis, and Plaintiff’s Claims Were Legally Insufficient on Causation U.S. District Court for the District of Maryland, May 18, 2016

In this case, the plaintiff sued numerous manufacturers and distributors of products allegedly containing asbestos, including Defendant General Electric Company (GE), following his diagnosis of mesothelioma. The plaintiff designated Dr. Robert Vance, an industrial hygienist, to testify regarding the sources of the plaintiff’s asbestos exposure. As to GE, Dr. Vance noted in his report that the plaintiff claimed to have worked with GE generators and asbestos-braided wiring at various job sites. Dr. Vance did not offer an opinion in his report regarding the plaintiff’s alleged…

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Court of Appeals of Ohio Finds Reversible Error in Refusal of Daubert Hearing On Basis of Opinions of Drs. Strauchen and Frank Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County, May 5, 2016

In this case it is alleged that the decedent, Glenn Watkins, was exposed to chrysotile asbestos dust from the sanding of Bendix brakes while working as a manager at various Auto Shack and AutoZone retail stores between 1985 and 2006 and that this exposure was a substantial cause of his pleural mesothelioma and death. Prior to trial, all defendants other than Honeywell International Inc. settled or were dismissed. The issue at trial was whether Watkins’ handling of Bendix brakes was a cause-in-fact of his mesothelioma,…

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Citing New York Case Law, Court Denies Crane Co.’s Motion in Limine to Preclude ‘Each and Every Exposure’ Opinion Supreme Court of New York, New York County, April 21, 2016

This opinion addressed potential causation testimony offered by the plaintiffs in two cases. In one case, the plaintiff’s decedent died of mesothelioma prior to being deposed. The decedent’s nephew and co-worker testified during deposition that his uncle was exposed to asbestos while working as a sheet metal worker at shipyards, and while installing furnaces, from the 1960s-70s. His testimony included exposure to insulation, packing, gaskets, and pipe covering used in connection with Crane valves. In the second case, the decedent, a career Navy man, died…

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Regardless of Whether New York or Maritime Law Applied, Government Contractor and Bare Metal Defenses Insufficient to Grant Summary Judgment to Foster Wheeler U.S. District Court for the Northern District of New York, March 21, 2016

The plaintiff alleged the decedent was exposed to asbestos while serving in the Navy from 1947-52, and while on board the USS Charles H. Roan. Defendants Foster Wheeler and General Electric removed to federal court pursuant to the federal officer statute. Foster Wheeler moved for summary judgment based on: (1) the government contractor defense; (2) bare metal defense; and (3) its products were not a substantial factor in causing injury. Crane Co. also moved for summary judgment; Crane, CBS Corp., and Foster Wheeler also…

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California Appellate Court Allows Expert Opinion Testimony on “Every Exposure” Theory Court of Appeal of California, Second Appellate District, March 3, 2016

The plaintiff presented expert testimonial evidence at trial that her father’s exposure to asbestos from Bendix brake linings was a substantial factor in contributing to his risk of developing mesothelioma. The jury found in favor of the plaintiff; defendant Honeywell International appealed on two grounds: (1) the “every exposure” theory should have been excluded under California law, and (2) the trial court erred in refusing to give a supplemental jury instruction regarding factors relevant to the substantial factor determination. The court found no error. For…

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Expert Opinion on Asbestos Content of Insulation — Based in Part on Non-Party Witness Declaration — Sufficient to Create Question of Fact to Overcome Summary Judgment Court of Appeal of California, First Appellate District, Division One, February 18, 2016

In this case, it was claimed that the decedent, Michael O’Leary, was exposed to asbestos while working as a rigger at the Tosco Refinery in the 1970s to late 1980s near employees from the defendant, Dillingham Construction N.A., Inc., who were sweeping up insulation off the floor in his vicinity. The trial court precluded the opinion that the insulation contained asbestos as being speculative from the plaintiff’s expert, Charles Ay, and granted summary judgment to Dillingham. On appeal, the court found the expert’s opinion to…

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Mixed Rulings on Daubert Challenges and Motions for Summary Judgment by Employer on Employees’ Non-Occupational Asbestos Exposure Claims U.S. District Court for the Western District of Wisconsin, February 19, 2016

In this decision, there were eight separate actions against Weyerhaeuser Company involving private and public nuisance claims brought by, or on the behalf of, former employees of Weyerhaeuser for asbestos-related injuries based on non-occupational exposure. Weyerhaeuser used asbestos in its mineral core plant to manufacture a door core. The plaintiffs non-occupational exposure claims were based on their living, or being, in close proximity to the plant. Weyerhaeuser “moved to strike plaintiffs’ experts and for summary judgment, arguing that plaintiffs are unable to prove injuries beyond…

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Daubert Challenge of Plaintiff’s Experts Denied in Career Boilermaker Case U.S. District Court for the Southern District of California, February 16, 2016

The plaintiff in this case alleged that the decedent, Michael Walashek, was exposed to asbestos from various products while working as a boilermaker between 1967 and 1986 on various naval, commercial, and industrial vessels. The defendant, Foster Wheeler LLC, filed a motion to preclude the testimony of the plaintiff’s experts Dr. Edwin Holstein ad Dr. Michael Claude Fishbein on the grounds that their opinions do not satisfy the requirements of Fed. R. Evid. 702 and Daubert. The court denied the motion. Regarding Dr. Fishbein,…

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Plaintiff Allowed to Substitute and Limitedly Amend Complaint, Several Cases Consolidated Against 3M Among Court Rulings on Daubert Hearings and Expert Preclusion U.S. District Court for the Western District of Wisconsin, November 9, 2015

In these federal court cases there were several motions brought forward, including a motion by the plaintiff to substitute the estate and file a third amended complaint following the death of the decedent, defendant 3M’s motion to preclude the plaintiff’s expert Dr. Arnold Brody, and defendant Weyerhaeuser’s Daubert motion regarding the plaintiff’s experts Frank M. Mark, III, and Drs. Henry A. Anderson and Jerrold L. Abraham. Regarding the plaintiff’s motion for substitution and to amend the complaint, the court held: “The court will grant the…

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Reliance of Dr. Eugene Mark on MSDS Sheets Not Enough to Overcome Court’s Exclusion of His Testimony Based on Daubert U.S. District Court for the Eastern District of North Carolina, Western Division, November 5, 2015

The court excluded the testimony of the plaintiff’s expert, Dr. Eugene Mark, on the basis of Daubert. After this order, defendant Ford filed a motion for summary judgment and a motion to dismiss, and defendant Honeywell filed a motion to reconsider the court’s summary judgment order; both were made pursuant to the court’s order excluding Dr. Mark. The plaintiff then moved to continue the trial to find a different causation expert and to file a motion for reconsideration. The court denied the motion to…

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