In this case, the plaintiff sued numerous manufacturers and distributors of products allegedly containing asbestos, including Defendant General Electric Company (GE), following his diagnosis of mesothelioma.
The plaintiff designated Dr. Robert Vance, an industrial hygienist, to testify regarding the sources of the plaintiff’s asbestos exposure. As to GE, Dr. Vance noted in his report that the plaintiff claimed to have worked with GE generators and asbestos-braided wiring at various job sites. Dr. Vance did not offer an opinion in his report regarding the plaintiff’s alleged exposure to GE marine turbines. On cross-examination at his deposition, Dr. Vance clarified that was only offering an expert opinion in the case in connection with GE wiring. However, upon later questioning by the plaintiff’s counsel, Dr. Vance claimed that the plaintiff also would have been at risk of exposure by working in proximity to GE marine turbines.
GE moved in limine to exclude Dr. Vance’s testimony regarding the plaintiff’s exposure to asbestos from GE marine turbines on the basis that Dr. Vance’s opinions were untimely and improperly disclosed pursuant to Rule 26 of the Federal Rules of Civil Procedure, which requires a complete disclosure all expert opinions pursuant to the scheduling order. The court found that Dr. Vance’s opinion regarding GE marine turbines was untimely and was neither substantially justified nor harmless — such that exclusion of the opinion was an appropriate remedy pursuant to Federal Rule 37.
Additionally, GE argued that Dr. Vance’s testimony was inadmissible per Federal Rule of Evidence 702 because it lacked a sufficient factual basis. In opining that the plaintiff was exposed to asbestos from GE wire, Dr. Vance had specifically relied upon testimony by the plaintiff that the plaintiff believed GE wire contained asbestos. Dr. Vance had no knowledge regarding the asbestos content of GE wire or the type of asbestos, if any, that was in the GE wire. Dr. Vance had not seen or reviewed any documentation indicating that GE wire actually contained asbestos during the relevant time period. The court agreed that Dr. Vance’s opinion was, indeed, based on insufficient facts or data and was therefore inadmissible.
In conjunction with the motion in limine to exclude Dr. Vance’s opinions, GE moved for summary judgment. It claimed that the plaintiff had failed to provide any evidence establishing that GE products to which the plaintiff was allegedly exposed actually contained asbestos. The court agreed and granted the motion, noting that the plaintiff’s “casual reference” to asbestos wiring “is not proof of asbestos.” The court further determined that there was insufficient evidence that the plaintiff worked in regular proximity to GE products – a requirement to establish causation under Maryland substantive law. As such, the plaintiff’s claims against GE failed as a matter of law.