Federal Court Declines to Exclude Testimony of Certified Industrial Hygienist

WASHINGTON – In the matter of Jill Diane Clayton v. Air & Liquid Systems Corp., et al., the United States District Court for the Western District of Washington denied the plaintiff’s motion to exclude the expert testimony of Certified Industrial Hygienist, Kyle Dotson, finding that Dotson’s testimony was both relevant and reliable under Federal Rule of Evidence 702. The plaintiff alleged that the decedent, William Richard Clayton, was exposed to asbestos while serving aboard the United States Navy ship, the U.S.S. Badger, in the 1970s, from a variety of products and equipment, as well as thermal insulation rip-out work performed by the defendant, Syd Carpenter Marine Contractor, Inc.

During trial, the defendant intended to rely on the expert testimony of Dotson, who calculated the decedent’s lifetime asbestos exposure and opined that same was below the Occupational Safety and Health Administration’s (OSHA) then-existing permissible exposure limits, and was de minimis or insignificant. To arrive at his conclusion, Dotson engaged in a retrospective dose assessment to create a range of hypotheticals, including a worst-case hypothetical, and then divided the length of the decedent’s exposure by the average work year. Dotson then compared that finding to a threshold exposure that anyone of the decedent’s age may have incurred from the ambient air. He concluded that the decedent’s worst-case hypothetical exposure associated with the defendant’s product was less than the cumulative exposure that someone of the same age would have incurred from living in a major United States city. The plaintiff, noting that lifetime exposure reconstructions have been widely criticized, argued that  Dotson’s work was scientifically unreliable and lacked sufficient factual foundation, and thus moved to preclude his opinions.

The court, acknowledging its gatekeeping role to ensure that testimony is both relevant and reliable under Federal Rule of Evidence 702, held that testimony is relevant if it logically advances a material aspect of the party’s case, and reliable if the expert’s testimony has a reliable basis in the knowledge and experience of the relevant discipline. The court noted that Dotson had been qualified as an expert witness in over 25 different courts when employing the same methods as he did in the present case, which, while not dispositive, was supportive of the court’s conclusion as to the reliability of his testimony. The court held that while the plaintiff’s experts chose to employ different methods to calculate the decedent’s exposure, it was the province of the jury to weigh the competing testimony, and the plaintiff’s expert was free to critique Dotson’s opinions during his testimony. The court declined to exclude Dotson’s testimony and commented that these types of disagreements between the parties’ expert witnesses are typical, and not a basis for exclusion.