Plaintiff’s Expert Testimony Precluded and Summary Judgment Granted Where Expert Opinion Did Not Rely Upon Sufficient Facts or Data U.S. District Court for the District of Maryland, June 6, 2016

Plaintiffs Charles Lemuel Arbogast, Jr., et al. filed suit against a number of companies, including defendant CBS Corporation of Delaware (Westinghouse), that allegedly manufactured and/or distributed products containing asbestos to which the plaintiff was exposed, thereby causing his mesothelioma.

The plaintiff offered Dr. Robert Leonard Vance as an expert in matters involving industrial hygiene and asbestos exposures.  Dr. Vance’s written opinion as to Westinghouse focused on two products:  asbestos “socks” and Micarta.  The plaintiff later conceded that that no liability existed as to the asbestos “socks.”  Dr. Vance’s written opinion states,“Mr. Arbogast produced electrical panel boards from asbestos containing Bakelite and Micarta panel board.” Dr. Vance acknowledge this opinion relies strictly upon the plaintiff’s deposition testimony. However, on cross-examination, defense counsel elicited from the plaintiff that his basis for statements that Micarta contained asbestos was “just talking in the shop” but he could not recall with you.

Westinghouse filed a motion in limine to exclude Dr. Vance and argued his opinion as to Micarta “is grounded in neither sufficient facts nor data, is not the product of reliable principles and methods, and contains that would assist the trier of fact.”  Upon reviewing the only available support for Dr. Vance’s opinion, plaintiff’s deposition testimony, the court found the plaintiff’s testimony as inconclusive, at best, on the alleged asbestos content of Micarta. Consequently, the court concluded Dr. Vance’s opinion rests only upon an unwarranted assumption rather than “sufficient facts or data,” as required by the Federal Rules of Evidence, Rule 702(b) and Dr. Vance’s opinion that the plaintiff was exposed to asbestos by working with Micarta was excluded from the case.

Westinghouse also filed a motion for summary judgment claiming that the plaintiff failed to provide any evidence that established that a Westinghouse product actually contained asbestos and was a source of plaintiff’s exposure.  The court found, that because of the failure of proof of an essential element of the plaintiff’s case, Westinghouse was entitled to summary judgment as a matter of law.

Read the full decision here.

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