Plaintiff’s Naval Expert Excluded Based on Lack of Qualifications

U.S. District Court for the Northern District of California, March 31, 2021

In this asbestos action, Mr. Toy (the plaintiff) alleges that his work with or around Warren pumps and Armstrong steam traps while serving in the United States Navy exposed him to asbestos. In support of his allegations, the plaintiff served an expert report of Captain Francis Burger, who opined as to asbestos-containing products and materials on Navy ships and in Naval shipyards. Captain Burger based his opinions on his extensive experience gained throughout his almost thirty-year naval career. Captain Burger also offered opinions as to the plaintiff’s potential exposure to asbestos aboard naval ships.

Defendants Warren and Armstrong filed motions to exclude Captain Berger’s report and anticipated testimony under Federal Rule of Evidence 702. Defendants argued that Captain Berger’s opinions were inconsistent with the plaintiff’s deposition testimony. With regard to Warren, the plaintiff testified that he did not work on or with any internal components of Warren pumps. With regard to Armstrong, the plaintiff testified that he removed and replaced Armstrong steam traps inside buildings at a naval station, as opposed to performing the aforementioned work on the vessels. However, the defendants contend that Captain Berger’s report “concedes that he does not have any expertise in land-based steam systems.”  

The court determined that any testimony Captain Berger may offer as to the plaintiff’s work with a specific product would be speculative. Under Rule 702(b), expert testimony must be “based on sufficient facts or data.” In this matter, Captain Berger does not have knowledge as to the plaintiff’s work outside of the plaintiff’s deposition testimony. Further, the court set forth that “Captain Burger even acknowledged during his deposition that he did not have any information that Armstrong products were on any of the ships that Mr. Toy worked on.” In addition, the court rejected the plaintiff’s contention that Captain Berger was qualified to render opinions on land-based steam traps as “Captain Burger acknowledged during his deposition that he is ‘not an expert on land-based steam systems,’ … and his report does not address land-based steam systems.” Thus, the court granted the defendants’ motions to exclude Captain Berger’s testimony as to specific manufacturers’ or suppliers’ products, as well as testimony regarding land-based steam traps.”

Read the full decision here.