Generic Expert Report Insufficient to Satisfy Summary Judgment Causation Standard Superior Court of Delaware, July 19, 2017
Plaintiff James Blair as the administer of the estate of Walter Godfrey, Jr. filed suit against defendant Cleaver-Brooks in the Superior Court of Delaware claiming that the decedent was exposed to asbestos from the defendant’s boilers and a result, was diagnosed and ultimately passed away from lung cancer. As the sole product identification witness, Walter Godfrey, Jr. testified to working with Cleaver-Brooks boilers at various locations between 1977 and 2013 while employed with Connecticut Boiler Repair.
The defendant moved for summary judgment and argued, among other things, that the plaintiff’s expert medical report is generic and did not meet the necessary causation standard. Specifically, the defendant points out that the plaintiff’s expert report mentions asbestos in three generic statements: (1) Godfrey was a 69-year old boiler machinist who was exposed to asbestos from 1963 until 1983; (2) exposure to asbestos is recognized as a substantial contributing cause of primary lung cancer; and (3) within the doctor’s conclusion that in his opinion, and to a reasonable degree of medical certainty, Godfrey’s exposure to asbestos was a substantial contributing cause of his primary lung cancer. This report never mentions or casually links the plaintiff’s lung cancer to the defendant’s product directly.
This case was ruled under Connecticut law from which a plaintiff’s right to sue for damages allegedly caused by a defective product is governed by the Connecticut Product Liability Act (CPLA) and is the exclusive remedy for claims brought against product sellers for personal injuries caused by a defective product. Further, a plaintiff in an asbestos products liability action must demonstrate that “a particular defendant’s product was used at the job site and that the plaintiff was in proximity to that product at the time it was being used.” The plaintiff “must produce evidence sufficient to support an inference that he inhaled asbestos dust from the defendant’s product. Accordingly, the plaintiff “must (a) identify an asbestos-containing product for which a defendant is responsible, (b) prove that he has suffered damages, and (c) prove that defendant’s asbestos-containing product was a substantial factor in causing his damages.” [Citation Omitted].
In this matter, the Supreme Court of Delaware found that the plaintiff’s expert report was insufficient to establish causation. Here, the court noted that to make a prima facie showing with respect to the cause of an asbestos-related disease, a plaintiff must introduce direct competent expert medical testimony that a defendant’s asbestos product was a proximate cause of the plaintiff’s injury. Specifically, this requires the plaintiff’s expert medical witness to state, in terms of reasonable medical probability, that there was a causal relationship between the defendant’s product and the plaintiff’s physical injury, i.e. that but for the plaintiff’s exposure to the defendant’s asbestos product, the plaintiff’s injury would not have occurred. In reviewing the plaintiff’s expert report, the court agreed with the defendant’s contention that the report was a generic causation report that did not link Plaintiff’s disease to a particular product., Accordingly, the court reasoned that the lack of such expert medical testimony in an action which alleges that a plaintiff’s asbestos-related disease was the result of exposure to a particular defendant’s asbestos-containing product, the issue of proximate cause cannot be submitted to the jury. The court further noted that without this nexus, “a lay jury’s finding that exposure to each defendant’s asbestos product was the proximate cause of each plaintiff’s asbestos-related disease would necessarily have been speculation.” [Citation Omitted].
Accordingly, this court found that the plaintiff’s expert report created nothing more than a speculative nexus between Godfrey’s injuries and the defendant’s product. The three generic statements within this report failed to casually link the defendant’s product to the plaintiff’s disease and thus, the report is insufficient to meet the necessary standard. The defendant’s motion for summary judgment was granted.