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 …
Continue ReadingCategory: Expert Challenges
California Appellate Court Allows Expert Opinion Testimony on “Every Exposure” Theory
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 …
Continue ReadingExpert Opinion on Asbestos Content of Insulation — Based in Part on Non-Party Witness Declaration — Sufficient to Create Question of Fact to Overcome Summary Judgment
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 …
Continue ReadingMixed Rulings on Daubert Challenges and Motions for Summary Judgment by Employer on Employees’ Non-Occupational Asbestos Exposure Claims
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 …
Continue ReadingDaubert Challenge of Plaintiff’s Experts Denied in Career Boilermaker Case
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, …
Continue ReadingPlaintiff Allowed to Substitute and Limitedly Amend Complaint, Several Cases Consolidated Against 3M Among Court Rulings on Daubert Hearings and Expert Preclusion
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 …
Continue ReadingReliance of Dr. Eugene Mark on MSDS Sheets Not Enough to Overcome Court’s Exclusion of His Testimony Based on Daubert
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 …
Continue ReadingFederal 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
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) …
Continue ReadingWife’s Testimony on Decedent’s Use of Brake Product and Expert Causation Testimony Held Sufficient to Defeat Summary Judgment
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 …
Continue ReadingMissouri Court, Applying Maryland Law, Upholds $4 Million Verdict, Rejecting Arguments on Expert Challenges, Offsets, and Defective Damages Verdict
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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