Four Daubert Challenges Denied in Shipyard Case

U.S. District Court for the Western District of Washington, November 30, 2020

Defendant Puget Sound Commerce Center, Inc. filed Daubert motions seeking to exclude the testimony of four of the plaintiffs’ experts: Captain Arnold Moore, Steven Paskal, Dr. David Zhang, and Charles Ay. On each motion, the court was charged with determining whether the expert’s testimony was reliable and helpful, and based on principles, techniques, or theories that were generally accepted in the expert’s profession; and whether the testimony would be helpful, in that it would go beyond the common knowledge of the average layperson. Taking each expert in turn, the court denied all four motions.

Captain Moore intended to offer testimony regarding the “maintenance practice and conditions aboard Navy ships,” and he based his testimony on Navy personnel and other records that showed where the plaintiff was assigned, the roles he filled, and some of the tasks that he performed. Mr. Moore also reviewed the declaration of one of the plaintiff’s shipmates who described the maintenance of diesel engines on one of the ships on which the plaintiff served. He reported that work replacing gaskets and packing on valves, pumps, and engines was regular, on-going, and routine aboard the ship, and that diesel engines in the engine rooms were insulated with heat blankets and asbestos insulation. The court found that Mr. Moore’s opinions were based on facts disclosed in the plaintiff’s naval records, the shipmate’s declaration, and his own technical and other specialized knowledge, which would be helpful to the fact finder in understanding what the plaintiff experienced during his naval service. As such, his testimony was admissible.

Certified Industrial Hygienist, Steven Paskal, intended to offer testimony regarding industrial hygiene concepts and concerns where asbestos dust is encountered, including how asbestos reacts when it is released in the air, the risks it poses to human health, and how to mitigate those risks. Mr. Paskal based his testimony on his experience in the industry and Captain Moore’s testimony regarding the plaintiff’s work. The defendant did not challenge Mr. Paskal’s expertise or suggest that his opinions would be unhelpful to the jury. Rather, Defendant argued that Mr. Paskal did not offer a cumulative exposure opinion, and rather his opinion leapt from estimated exposure levels to a conclusion that the plaintiff’s exposure was a substantial factor in the development of his mesothelioma. The defendant failed to show, however, that this made Mr. Paskal’s testimony unreliable or unhelpful. Given this, the court held that Mr. Paskal’s anticipated testimony based on Captain Moore’s admissible testimony regarding the plaintiff’s work and the frequency and duration of such work, was both reliable and helpful, and therefore admissible.

Dr. David Zhang, a pathologist and occupational medicine specialist sought to offer an opinion that based on the plaintiff’s history of asbestos exposure, clinical presentation, radiologic findings, and other information, he had malignant pleural mesothelioma. The defendant did not challenge Dr. Zhang’s expertise, but argued that he had no factual basis for his conclusions. The court found this argument unpersuasive for the same reasons discussed with regard to Mr. Paskal—Dr. Zhang’s opinion was based on his own expertise, coupled with the testimony of Captain Moore regarding the plaintiff’s work. As such, his testimony was neither unhelpful nor unsound, and was therefore admissible.

Charles Ay, a certified asbestos consultant, worked as an asbestos insulator in the shipyard industry from 1960 to 1981 and was subsequently rained in the detection, testing, and abatement of asbestos. Defendant failed to identify any of Mr. Ay’s opinions that it found to be objectionable, but rather argued that he should be precluded from testifying because he never worked at the same shipyard or on the same ship as the plaintiff. The court found this argument unpersuasive, and held that Mr. Ay based his opinions on his experiences and education, and those opinions would be helpful to a jury regarding asbestos, its uses, the way it is released into the air, and concentrations resulting from various activities. As such, his testimony was admissible.