Mesothelioma

Parties Trade Blows as Court Rules to Preclude Expert Opinions

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U.S. District Court for the Middle District of North Carolina, August 11, 2022

The late Robie Walls brought this asbestos action in early 2020 after a mesothelioma diagnosis. He alleged asbestos exposure from his service in the United States Navy and his civilian career as a tractor-trailer fleet mechanic. Walls died from the disease in October 2020 and his widow continued the action against the remaining defendants. After a February 2022 summary judgment ruling, defendant Ford moved the court to reconsider, resulting in in this matter.

The parties filed approximately 25 Daubert motions to exclude expert testimony offered by both sides. Daubert and Rule 702 of the Federal Rules of Evidence establish whether expert testimony is admissible. In summary, FRE 702 and Daubert state that expert testimony is admissible only if: (1) the expert is qualified; (2) the testimony is relevant, and (3) the testimony is based on scientific methodology. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Fed. R. Evid. 702.

Despite each expert’s impressive knowledge pertaining to their respective field, the court found this was too high of a bar for many. First, the defendants moved to exclude the testimony of Dr. Murray Finklestein, Dr. Edwin Holstein, and Dr. John Maddox, arguing their opinions were unreliable and did not fit the facts of the case. After reviewing each doctor’s credentials, the court determined that although they were qualified to be experts, their testimony regarding causation was problematic. Crucially, the court determined that the “substantial factor” requirement was a legal term, not a scientific term. As such, it ruled the doctors could not state whether the decedent’s asbestos exposure was a “substantial factor” to his mesothelioma, leaving the determination to a jury. Subsequently, the court granted in part and denied in part the defendants’ motion. Each expert could offer general causation testimony, but could not discuss opinions concerning “substantial factor.”

Next, the plaintiff motioned to exclude the defendants’ expert opinions concerning the decedent’s naval service. The defendants planned to offer evidence that the decedent’s exposure to asbestos during his service contributed to his mesothelioma diagnosis. In order to do so, Captain Margaret McCloskey and Christopher Herfel would offer their expert opinions. Despite the impressive education and naval careers of both witnesses, the court found neither was qualified as an expert. Thus, the court granted the plaintiff’s motion in part and denied it in part, ruling the proposed expert testimony was inadmissible, but lay testimony on naval exposure would be permitted.

The plaintiff also moved the court to prevent the defendants from cross-examining their experts about the manufacturing process of asbestos-containing friction products. The court denied the plaintiff’s motion, finding that the defendants’ likely line of questioning would be relevant in examining the plaintiff’s experts’ reliability and credibility. Next, the plaintiff moved to exclude testimony alleging that a mechanic’s exposure to chrysotile friction products cannot cause mesothelioma. After a discussion involving the chemistry of asbestos and the defendants’ experts’ credentials, the court granted the plaintiff’s motion in part by excluding two expert witnesses, but denying the motion in part by allowing two other expert witnesses to testify.

The plaintiff next moved to preclude the defendants’ experts’ opinions concerning the relationship between cumulative exposure and mesothelioma diagnoses. After finding the defense experts’ math imprecise, the court ruled such experts could not testify to their calculations. Lastly, the plaintiff moved to preclude the defense expert opinions discussing the difference between chrysotile fibers and other asbestos fibers. The court granted this motion and found the defendants’ argument unpersuasive because their proposed experts did not satisfy the requirements of FRE 702 or Daubert.

Read the full decision here