District Court Denies Motion to Strike Expert Testimony

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U.S. District Court for the Eastern District of Louisiana, August 23, 2022

Decedent Callen Cortez sued defendant Hopeman Brothers Inc., among others, claiming that alleged asbestos exposures caused him to develop mesothelioma. In support of this position, the plaintiffs retained an expert industrial hygienist, Gerald Baril, who opined that Cortez suffered paraoccupational, direct, and bystander exposure to asbestos-containing products, and that Hopeman significantly contributed to his risk of developing mesothelioma. To form his opinion, Baril relied on testimony from individuals that worked with Cortez, who testified that Hopeman employees cut asbestos-containing wallboard in their presence. Baril also relied on six studies to determine the level of asbestos exposure that Cortez would have experienced from this cutting, and compared this exposure to current and historical occupational health standards for asbestos. Ultimately, Baril concluded that the exposures were “well in excess of these standards” and that they presented a “significant risk of mesothelioma.”

Hopeman moved to strike the testimony of Baril under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, arguing that it was unreliable and unhelpful. Hopeman contended that Baril did not reliably determine asbestos exposure levels and improperly assumed that all exposure levels above background were harmful. The court disagreed, noting that the plaintiffs are not required to show the precise amount of a toxic substance to which they were exposed. Moreover, the court noted that Baril opined that exposures from Hopeman were harmful because they exceeded applicable safety standards, and not that the exposures were simply above background.

Hopeman also argued that Baril’s testimony should be excluded or limited because he was unfamiliar with Hopeman’s operations or materials. The court similarly disagreed, noting that Baril relied on witness testimony that Hopeman’s wallboard was made of micarta, and that the Hopeman workers cut the boards with ski saws. Further, Baril relied on studies, including the Longo/Hatfield micarta study, which evaluated asbestos fibers released from cutting products associated with micarta. As such, the court determined that Hopeman’s arguments did not support a finding that Baril’s opinion lacks a factual basis. Instead, the arguments are the proper subject of cross-examination.

Finally, the court opined that, to the extent Hopeman attempted to criticize the Longo/Hatfield study itself, the arguments similarly lack merit. Specifically, the court found that the study relied on both the transmission electron microscopy (TEM) and phase-contrast microscopy (PCM) methods to measure asbestos release. Hopeman argued that the TEM method produced exaggerated results. However, Baril only relied on the PCM method results in his report, which Hopeman did not criticize.

For these reasons, the court denied Hopeman’s motion to strike.

Read the full decision here