The plaintiffs, Dwayne Bourdeaux, Gerilyn Cook, and Bryan Bourdeaux, Individually and as Proper Parties in Interest for Gerald Bourdeaux, filed suit in Louisiana alleging that Gerald Bourdeaux lung cancer diagnosis and eventual death was asbestos exposure. In support of this claim, the plaintiffs offered Dr. Gerald E. Liuzza, a pathologist, as an expert witness to establish the causative link between the asbestos exposure and lung cancer.
Defendant Trinity Industries, Inc. filed a motion in limine to preclude Dr. Liuzza from testifying at trial on the grounds that his opinion regarding medical causation, and the methodology by which he arrived to it, were not satisfactory under the law. Trinity concurrently filed a motion for summary judgment in the event the court excluded Dr. Liuzza’s testimony. The trial court granted defendant’s motion to exclude Dr. Liuzza’s testimony and consequently defendant’s motion for summary judgment. The plaintiff appealed and the Court of Appeal of Louisiana, Fourth Circuit provided a decision on June 22, 2016.
In its motion to exclude, Trinity argued the trial judge should strike Dr. Liuzza’s opinion on medical causation because the methodology used in reaching his opinion was flawed in two respects. First, Trinity pointed out that, while he acknowledged that cigarette smoking is the leading cause of lung cancer, Dr. Liuzza nevertheless did not know about, and thus did not consider, Mr. Boudreaux’s thirty-year history of smoking three packs of cigarettes a day. Second, Trinity noted that Dr. Liuzza formed his causation opinion without any underlying evidence regarding the dosage of asbestos received by Mr. Boudreaux via occupational exposure. Trinity claim, in a normal case, a plaintiff’s pathologist is not qualified to calculate asbestos dosage and so will rely upon the opinion of the plaintiff’s industrial hygienist when forming his opinion on causation. In this case, Trinity notes, Dr. Liuzza formed his opinion without the benefit of an industrial hygienist’s dosage report, but relied instead upon twenty-five pages excerpted from the 108-page deposition of Terry Thibodeaux, one of Mr. Boudreaux’s co-workers. Based on these excerpts, Dr. Liuzza assumed that Mr. Boudreaux was exposed to asbestos on a near-daily basis. When asked at deposition, however, about various work-related factors that could impact the extent of Mr. Boudreaux’s historical exposure, factors discussed by the co-worker in the 83 pages of deposition not provided to him, Dr. Liuzza conceded that he would have to defer to an industrial hygienist.
The plaintiffs argued Dr. Liuzza did consider Mr. Boudreaux’s smoking history when formulating his opinion, and pointed in support to this statement from his report: “Most workers in Mr. Boudreaux’s field are smokers. If Mr. Boudreaux did in fact also have a significant tobacco exposure, then I would attribute his lung cancer to the combined effects of asbestos and tobacco.” The plaintiffs further pointed out that when confronted by Trinity’s counsel with the evidence of Mr. Boudreaux’s smoking history, Dr. Liuzza altered his opinion during the course of the deposition to conclude that Mr. Boudreaux’s lung cancer could be attributed to a combination of asbestos and tobacco. With respect to Trinity’s second argument, the plaintiffs asserted that no scientific standard required Dr. Liuzza rely solely upon an industrial hygienist when estimating Mr. Boudreaux’s exposure history. Rather, the plaintiffs argued that the jurisprudence indicates that Dr. Liuzza was justified in relying solely upon the 25 pages of deposition extracts provided to him by counsel.
Upon its review, the Court of Appeals emphasized that is well-established that the trial court is afforded wide discretion in determining whether expert testimony should be admitted and who should or should not be qualified as an expert. A trial court’s decision to qualify an expert will not be overturned absent an abuse of discretion. The abuse-of-discretion standard is highly deferential to the trial judge’s determination under consideration and generally results from a conclusion reached capriciously or in an arbitrary manner. “Arbitrary or capricious” means the absence of a rational basis for the action taken. See A.S. v. D.S., 14-1098, p. 17 (La. App. 4 Cir. 4/8/15), 165 So.3d 247, 257. In this matter, the trial judge excluded Dr. Liuzza’s testimony from trial after concluding that his failure to consider Mr. Boudreaux’s thirty-year history of smoking three packs of cigarettes a day, family medical history, and the remainder of Mr. Thibodeaux’s deposition to be so divergent from scientific medical practice as to render his methodology unreliable. Accordingly, the Court of Appeal of Louisiana found no abuse of discretion in the exclusion of Dr. Liuzza’s expert opinion testimony.