Expert Challenges and Motions in Limine Decided in Federal Shipyard Case

U.S. District Court for the Eastern District of Louisiana, September 16, 2020

The U.S. District Court for the Eastern District of Louisiana has issued seven decisions on motions in limine filed by both plaintiffs and defendants in the Dempster v. Lamorak Insurance Co. matter, which has been closely followed by Asbestos Case Tracker. By way of background, the plaintiffs alleged the decedent, Callen L. Dempster was exposed to asbestos while employed at the Avondale Shipyards from 1962 to 1994. The case was removed to federal court pursuant to the federal officer removal statute.

Before the court were three motions regarding the plaintiffs’ expert witness testimony. First, the defendants moved to exclude the testimony of the plaintiffs’ expert, Dr. Stephen Terry Kraus on three grounds: (1) that Dr. Kraus never reviewed documents specific to the defendant, and therefore had no idea what, if any, exposure the decedent sustained as a result of the defendants’ operations at the Avondale Shipyard; (2) that Dr. Kraus had no scientific, technical, or other special knowledge that would help the jury understand the evidence or determine a fact in issue, as he is a radiation oncologist; and (3) that Dr. Kraus’ opinions as to the cause of the decedent’s lung cancer were not based on any scientific data or reliable methodology, because he did not provide any quantitative or qualitative assessment of the decedent’s alleged exposure to asbestos from the defendants’ operations at the Avondale Shipyard. Specific to this last point, the defendants asserted that Dr. Kraus failed to provide any testimony regarding the proximity, frequency, or duration of the alleged exposure to asbestos.

Following the Daubert standard, which requires a two-part inquiry as to the relevance and reliability of the proffered testimony, the court held that Dr. Kraus was qualified to provide expert testimony as to the cause of the decedent’s lung cancer, as experts are not strictly confined to their areas of practice, but may testify concerning related applications; and a lack of specialization goes to the weight of the testimony, and not its admissibility. The court also held that Dr. Kraus was not required to show the precise level of asbestos to which the decedent was exposed. His proposed testimony was based on scientific knowledge regarding the harmful level of exposure to asbestos, and evidence indicating that the decedent was exposed to such harmful levels. The court held that questions relating to the bases and sources of an expert’s opinion affect the weight of the testimony and not its admissibility. Given this, the court denied the defendants’ motion to preclude Dr. Kraus.

The defendants also moved to preclude, and then subsequently to strike, the testimony of the plaintiffs’ industrial hygiene expert, Gerald L. Baril that “any exposure to asbestos above background is a significant contributing factor to Decedent’s disease,” and to preclude him from providing opinions or calculations that rely on studies performed by other individuals, including Hayes, Hatfield, Millette, and Carter. Again following Daubert, the court held that to the extent that Mr. Baril’s testimony advocated for an “every exposure” or “every exposure above background” theory of causation, such testimony was excluded, as numerous courts have excluded such testimony as unreliable and not supported by sufficient facts or data. Given this, the court granted the defendants’ motion on this part. With regard to the argument that Mr. Baril’s reliance on studies performed by others should be prohibited, the court found the defendants’ arguments unavailing, as the other studies were based on reliable methodologies. The court reiterated that the bases and sources of an expert’s opinions go to the weight of the testimony and not its admissibility.

In addition to their motions in limine to preclude the plaintiffs’ experts, the defendants also moved to exclude a Michigan Supreme Court Amicus Brief, subsequently published by Laura S. Welch, entitled “Asbestos Exposure Causes Mesothelioma, But Not This Asbestos Exposure: an Amicus Brief to the Michigan Supreme Court,” also known as the “Welch Paper.” The defendants argued that the Welch Paper had been excluded by multiple courts throughout the country as irrelevant, lacking in probative value, and highly prejudicial; and as inadmissible hearsay and improper expert reliance material. In opposition, the plaintiffs argued that the Welch Paper was admissible under the learned treatise exception to hearsay, as peer-reviewed literature routinely relied upon by experts. Notwithstanding, the plaintiffs conceded that the brief was hearsay. Ultimately, the court declined to reach the issue of hearsay, and granted the defendants’ motion, as it found that the prejudicial effect of the Welch Paper substantially outweighed its probative value.

Turning to the plaintiffs’ motions in limine, the court was asked to exclude the introduction of any documents submitted in connection with asbestos personal injury bankruptcy trust claims and any evidence regarding settlements under Federal Rule of Evidence 408 (Compromise Offers and Negotiations). The plaintiffs argued that evidence of a compromise of a claim is not admissible to prove liability for the claim. In opposition, the defendants argued that the evidence of prior settlement agreements, including those involving bankruptcy trusts, were admissible to show bias in testimony and the presentation of the plaintiffs’ case; to provide the defendants at trial the ability to share credits to which they are entitled for the fault of settled entities; and to establish whether the plaintiffs have properly preserved their rights to obtain additional settlement funds from remaining parties. The court granted the plaintiffs’ motion in part, agreeing that evidence of settlements should be excluded for certain purposes, such as to prove or disprove the validity of or amount of a disputed claim or to impeach by a prior inconstant statement or contradiction. However, the court held that such evidence may be admissible to show a witness’s bias or prejudice.

The plaintiffs also moved to preclude the testimony of Avondale’s industrial hygiene witness, Danny Joyce, who was employed at the shipyard beginning in the 1980s (after the decedent’s time there). The plaintiffs anticipated that Mr. Joyce would testify regarding the decedent’s work, but also regarding air sampling at Avondale that pre-dated his presence at the shipyard, and sought to preclude any such testimony that was not based on personal knowledge. The defendants argued that Mr. Joyce would be offering an opinion based on his qualifications, work experience, and research of relevant and reliable facts and data, concerning whether any asbestos exposure to the decedent at Avondale would have exceeded the regulatory limits of the day. Ultimately, the court held that while experts may rely on hearsay evidence in forming their opinions, such reliance does not render the hearsay itself admissible at trial. If the hearsay is inadmissible, the expert may disclose the hearsay to the jury only if its probative value substantially outweighs its prejudicial effect. Here, the defendants did not argue that the probative value of any of the hearsay at issue substantially outweighed its prejudicial effect. As such, the court held that Mr. Joyce was precluded from offering any factual testimony that constituted inadmissible hearsay.