Category Archives: Expert Challenges

Federal Court Applies Laws of New Jersey and the Third Circuit in Allowing Experts to Testify Regarding General, Not Specific, Causation in Case Alleging Renal Cancer U.S. District Court for the Eastern District of Pennsylvania, October 23, 2015

The plaintiff alleged that he developed renal cancer from asbestos exposure while working at the Philadelphia Navy yard, the New York Shipbuilding yard, and various automotive and electric shops in New Jersey. In July 2013, this case was removed to the federal court in Pennsylvania as part of MDL-875. Defendant Ford moved to exclude the expert testimony of Arthur Frank, M.D., Ph. D., and Scott A. Bralow, D.O., because: (1) the “any exposure” theory underlying their opinions has been deemed inadmissible under Pennsylvania law; (2)…

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Wife’s Testimony on Decedent’s Use of Brake Product and Expert Causation Testimony Held Sufficient to Defeat Summary Judgment U.S. District Court for the Southern District of Illinois, October 2, 2015

In this federal court case, decedent Richard Bell alleged exposure to asbestos while performing car maintenance from 1964 through the late 1970s. Defendant Honeywell, as successor of Bendix, moved for summary judgment, arguing that the decedent’s wife’s deposition testimony that the decedent used Bendix brakes with the word “asbestos” on the packaging was hearsay; that the testimony could not be used against it to oppose summary judgment since it was taken prior to Honeywell becoming a party; and that the plaintiff failed to show the…

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Missouri Court, Applying Maryland Law, Upholds $4 Million Verdict, Rejecting Arguments on Expert Challenges, Offsets, and Defective Damages Verdict Court of Appeals of Missouri, Eastern District, Division Four, September 22, 2015

In this case, the plaintiff worked as a steamfitter between 1958 and 1983 at a variety of industrial and commercial sites. Of the original 57 defendants, only valve manufacturer Nibco, Inc. went to trial, which resulted in a $4 million plaintiff’s verdict with the trial court applying Maryland law. On appeal, Nibco raised four issues: it should have been granted a directed verdict; the plaintiff’s experts were allowed to offer opinions based on facts not in evidence; the lower court improperly denied setoff rights; and…

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Brake Defendant’s Motion to Preclude Causation Expert Under Daubert Denied U.S. District Court for the Southern District of New York, September 22, 2015

The plaintiff commenced this wrongful death action alleging that the decedent developed mesothelioma caused by prolonged exposure to brake dust from brake pads manufactured by Bendix while working as a part-time bookkeeper at an auto repair shop from 1984-1990.  Defendant moved in limine to preclude testimony from the plaintiff’s expert, Dr. Jill Ohar, with respect to any testimony that brake dust causes mesothelioma and any testimony based on the every exposure theory. The defendant also sought to preclude any testimony that asbestos or chrysotile causes…

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Court Provides Mixed Ruling in Applying Kansas Law and Granting Summary Judgment to One Defendant, but not the Other U.S. District Court for the Western District of Missouri, Western Division, September 3, 2015

In this case, the plaintiff, John New, alleged exposure to asbestos while working at various businesses in Kansas and Missouri. Defendants Hennessy Industries and Caterpillar Incorporated moved to apply Kansas law and for summary judgment. The court granted in part Hennessy’s motion and dismissed the plaintiff’s complaint. The court found that Kansas law “possesses the most significant relationship to these parties and causes of actions.” In its assessment, the court reviewed four factors: the place of exposure and diagnosis, where the conduct causing the injury…

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State of The Art Experts Drs. Markowitz and Rosner Found Qualified to Testify U.S. District Court for the Western District of Missouri, Western Division, September 3, 2015

In this case, the plaintiff, John New, alleged exposure to asbestos while working at various businesses in Kansas and Missouri. Defendant Caterpillar Incorporated moved to strike the expert state of the art testimony of historians Dr. Gerald Markowitz and Dr. David Rosner, arguing that “…(1) their testimony will not assist the jury in deciding any issue in this case; (2) they fail to qualify as ‘experts’ under Rule 702; (3) their report was written solely for the purposes of litigation; (4) their report is unreliable…

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Plaintiff’s Expert B Reader Found Qualified to Testify on Exposure and Causation U.S. District Court for the Southern District of Illinois, August 31, 2015

In this federal court case, the defendants moved to preclude the testimony of the plaintiff’s expert, Dr. Matthew Vuskovich, arguing that he was not qualified to testify, his testimony was not sufficiently reliable, and his opinions were based on the “every exposure” theory. The court denied the motion, finding Dr. Vuskovich’s credentials as a certified B Reader to be adequate. Regarding the reliability of his testimony and the “every exposure” argument, the court held: “Dr. Vuskovich does state that asbestosis is a cumulative disease, which…

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Plaintiff’s Expert Found Qualified to Testify and Pump Manufacturer Denied Summary Judgment on Frequency, Regularity, and Proximity Argument U.S. District for the Southern District of Illinois, August 28, 2015

In this federal court case, the plaintiff alleges that he was exposed to asbestos while serving in the Navy from 1954 to 1958 while aboard the USS Roosevelt, USS Bremerton, and USS Intrepid. Several defendants moved to limit the trial testimony of the plaintiff’s proffered expert, Dr. Jerome Spear, arguing that his report and testimony rely on the “every exposure” theory, his opinions are based on unreliable scientific methodology, and his testimony would not assist the jury. The defendant, Ingersoll-Rand Company (“Ingersoll-Rand”), also moved for…

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Preclusion of Plaintiff’s Expert Witness and Defendant’s Investigation of Juror Do Not Warrant New Trial U.S. District Court for the Northern District of Illinois, Eastern Division, August 25, 2015

In this federal case, the plaintiff, Charles Krik, sued Owens-Illinois and ExxonMobil and claimed they negligently exposed him to asbestos, causing his lung cancer. The case went to trial and a verdict was returned in favor of the defendants as the jury found that the plaintiff’s smoking was the sole cause of his lung cancer. The plaintiff subsequently moved for a new trial, arguing that the exclusion of his expert was in error and prejudicial and that Mobil’s investigation of contact between the plaintiff and…

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Court Grants Non-Party Expert’s Motion to Quash Subpoena Even Though Items Sought Deemed Relevant U.S. District Court for the Eastern District of Pennsylvania, August 12, 2015

In this federal court motion, Dr. Arthur Frank moved to quash the subpoena served on him by Honeywell International Inc. as a defendant in a pending Eastern District of North Carolina asbestos case, Yates v. Ford Motor Co., et al.  Honeywell subpoenaed Dr. Frank, a prolific plaintiff’s expert in asbestos cases and a non-party to the North Carolina action, concerning his successful lobby of the National Cancer Institute (NCI) to change language on its website and in its “Fact Sheets” regarding cancer risks to…

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