Court Denies Multiple Motions including Plaintiff and Ford Motor Co.’s Daubert Motions, Ford’s Motion for Summary Judgment and Plaintiff’s Motion for Reconsideration U.S. District Court for the Southern District of Florida, July 11, 2016

Plaintiff James Waite and his wife Sandra Waite brought this action against Ford Motor Co. and Union Carbide Corporation (UCC) for Mr. Waites’ alleged development of mesothelioma from his work on brakes and clutches. UCC’s motion to dismiss for lack of personal jurisdiction was at first denied by the Court but then granted on UCC’s Motion for Reconsideration. Ford then moved to exclude the plaintiffs’ experts (Daubert Motion) and for summary judgment. The plaintiff moved to preclude various elements of Ford’s proposed expert witness testimony and also moved for reconsideration of the order dismissing UCC.

The court began its lengthy discussion with the three prong test for a Daubert Challenge, which includes 1) the expert is qualified to testify competently regarding the matters he intends to address; 2) the methodology by which the expert reaches his conclusions is sufficiently reliable; 3) the testimony assist the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or determine a fact in issue. An expert’s “knowledge, skill, experience, training or education” is also to be considered. However, the court is not to “exclude an expert based on a belief that the expert lacks personal credibility.”

As for the plaintiffs’ motion to limit Ford’s expert’s proposed testimony, the court noted that argument made was “narratively interesting,” but that it was irrelevant to the Daubert analysis. The court also noted that the plaintiff’s argument struck at the strength of Ford’s expert testimony but that those issues were reserved for the trier of fact. Another point made by the plaintiff was the fact that Ford directly or indirectly funded the research that its experts would rely upon. However, the “source of funding for a piece of peer-reviewed scientific literature is a question of weight, not admissibility,” according to the court. Yet another attack made by Plaintiffs was that the studies presented by Ford did not support the notion or position that auto mechanics have no increased risk of developing mesothelioma. The court disagreed and found that this very issue was one to be addressed on cross-examination. Finally, the plaintiff argued that Ford’s experts should not be allowed to submit opinions that certain asbestos fibers are more potent than others. The crux of this argument was that Ford had not identified a source of amphibole exposure and as such, amphibole exposure was irrelevant. The court disagreed as it found that a defendant may offer evidence of potential alternative causes of disease.

Ford contended that the plaintiff’s historical expert Dr. Barry Castleman’s testimony should be excluded. Primarily, Ford argued that he should not be permitted to testify just because he “read and researched.” The court disagreed and noted that Ford ignored Dr. Castleman’s “level of education, training, and experience far surpasses casual research.” Specifically, Dr. Castleman’s level of education is dispositive of Ford’s motion. The court also noted Dr. Castleman’s publications and his personal work and effort to warn the public of the dangers of asbestos. In sum, the court found that Dr. Castleman was not only qualified to testify but also reliable. Ford continued its argument and attempted to exclude Drs. Brody and Frank as unreliable and unhelpful. The court refused an extensive Daubert analysis on the question of general toxicity. Rather, the court stated that the issue of causation is so well settled that the real issue is whether the plaintiffs’ exposure is “of the magnitude” to cause his disease. Ford argued that as to specific causation, Drs. Brody and Frank could not testify as to substantial factor of exposure from a Ford product. The court disagreed as they used the same weight-of-evidence approach as the International Agency for Research on Cancer and Disease Registry, the World Health Organization and the United States Agency for Toxic Substances and Disease Registry. Of particular interest, the court stated: “Plaintiffs’ experts have properly considered and evaluated a variety of scientific evidence concerning asbestos in formulating their opinions.” In sum, the court found Drs. Brody and Franks’ testimony both reliable and helpful.

Ford also moved for summary judgment notwithstanding the Daubert Challenge. Ford contended that even with the testimony of Drs. Brody and Frank, the plaintiffs could not establish causation to a Ford product. Specifically, Ford argued that Dr. Frank’s weight-of the-evidence approach is contra to Florida law, which uses a standard to introduce evidence of a reasonable basis for the conclusion of causation. The court disagreed and found that Dr. Frank’s testimony was in fact based on a reasonable basis. Ford also argued that summary judgment was appropriate as it was protected by the Bare Metal Defense. The court agreed with Ford in its understanding of the Bare Metal Defense but pointed out the obvious testimony that Mr. Waite had performed 8 brake jobs with original Ford equipment. Accordingly, Ford was a “Bare Metal Supplier” and it could not rely on that defense.

As for the plaintiffs’ motion for reconsideration, the court reminded the three grounds justifying reconsideration which include 1) an intervening change in controlling law; 2) the availability of new evidence 3) the need to correct clear error or prevent manifest injustice. The plaintiffs argued that the court had “manifestly misapplied controlling law.” However, the court stated that the arguments were the same arguments made by the plaintiffs from the onset of the case. Further, the court addressed the plaintiffs’ contentions in its prior order. According to the court, nothing put forward by the plaintiffs warranted re-litigation of whether UCC “availed itself to this forum” for purposes of establishing personal jurisdiction.

Read the full decision here.


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