Plaintiff’s Expert precluded from offering testimony on whether Supplier can be Considered a Manufacturer

United States District Court for the Eastern District of Louisiana, July 20, 2022

In this asbestos action, decedent Callen Cortez was diagnosed with mesothelioma following occupational and take-home exposure to asbestos. As relevant to the motion, plaintiff’s complaint alleged that former suppliers and distributors Eagle and McCarty were liable as manufacturers as a “professional vendor,” as they “would package [asbestos-containing] products from other distributors and manufacturers . . . in their own boxes and packaging, and hold out the products as their own.” Defendants moved to limit plaintiff’s industrial hygienist Gerard L. Baril from “making a legal determination as to the definition of a manufacturer under Louisiana law.

After describing the admissibility of expert witness testimony under Federal Rule of Evidence 702, the court set forth Baril’s previous testimony in another case that defendants sought to preclude in this matter:

Q: And as an industrial hygienist, what does that indicate to you when a supplier is placing its name on a box?

A: It means if a supplier/distributor puts their name on the box, the ownership of that product is theirs. That makes the warning information—hazard warning their responsibility.

Q: So, essentially, they’re holding out to the public that they’re an actual manufacturer of the product, correct?

A: Right. That’s correct.

With regard to the respective arguments, defendants contend that Baril does not satisfy the Daubert criteria to be able to opine as to the legal definition of a manufacturer. Plaintiffs opposed the motion by asserting that Baril has not cited any case-specific documents to show that Baril would offer this opinion in this case. Even so, plaintiffs argue that such an opinion by an industrial hygiene expert would be admissible as he looks to the name of the company on respective packaging and “looks to that company to obtain information regarding the hazards of the product.”

Under Louisiana law, suppliers can face strict liability as a manufacturer if the supplier is determined to be a professional vendor if (1) the defendant held the products out to the public as its own, and (2) the size, volume, and merchandising practices of the defendant bring it within the class of professional vendors, who are presumed to know the defects in their wares.” Dempster v. Lamorak Ins. Co. The court held that “[t]he determination of whether suppliers . . . are ‘professional vendors,’ . . . are legal questions, and are not a proper subject for the testimony of an expert industrial hygienist.” Thus, the court granted the motion to limit Baril’s testimony.

Read the full decision here.