Plaintiff’s Reliance on Precluded Expert Report Results in Dismissal of Action U.S. District Court for the Eastern District of Virginia, Newport News Division, November 19, 2015

The plaintiff brought this case alleging that his asbestosis and mesothelioma was caused by asbestos exposure during his employment with United States Navy. Several defendants were dismissed from the action, leaving electrical component manufacturer, Westinghouse as the sole remaining defendant, against whom plaintiff claimed exposure to asbestos from arc chutes contained in Westinghouse electrical products. Prior to the current motion for summary judgment, Westinghouse served several motions seeking to preclude certain portions of plaintiff’s proof, including the expert report and opinion of the plaintiff’s causation expert, Dr. Vance, who opined that the plaintiff’s testimony claiming he observed visible dust emanating from the Westinghouse arc chutes during the use of compressed air was proof that the plaintiff was exposed to a dose of asbestos sufficient to cause disease. The court precluded Dr. Vance’s expert opinion in an earlier opinion and Westinghouse’s motion for summary judgment ensued.

Westinghouse’s motion argued the following: 1) inasmuch as the alleged exposure occurred aboard a Navy vessel on navigable waters, federal Maritime Law applied, rather than Virginia state law; 2) the plaintiff failed to present proof that the Westinghouse arc chutes he encountered actually contained asbestos; and, 3) the plaintiff failed to present evidence of exposure from a Westinghouse product at a dose sufficient to cause disease.

The court spent very little time analyzing the application of Maritime law because the result on the motion would be the same under the applicable federal and state law standards. The court found that a genuine issue of material fact existed in terms of the asbestos content of the subject arc chutes. Citing to the plaintiff’s degree in electrical engineering, as well as his work history as a nuclear engineer and electrical engineer, the court reasoned that these experiences supported his testimony that the arc chutes appeared to contain asbestos. The plaintiff also submitted Westinghouse technical manuals and a 2010 naval advisory document indicating the use of asbestos-containing arc chutes. This evidence, when coupled with the plaintiff’s deposition was, according to the court, sufficient to create a genuine issue of material fact precluding dismissal on these grounds.

Westinghouse, however, was successful in convincing the court that the plaintiff had failed to present evidence that the Westinghouse arc chutes released asbestos fibers that were a substantial factor in causing the plaintiff’s injury. Westinghouse submitted an affidavit by a retired Westinghouse engineer stating that the air circuit breakers plaintiff described were contained in metal cabinets “through which ambient air and dust from the surrounding environment can pass freely from the outside to the inside of the cabinet.” Thus, the composition of the dust the plaintiff observed was uncertain. The court held that “plaintiff’s own knowledge and testimony fail to create genuine issues of material fact concerning the extent of asbestos content in Westinghouse arc chutes, whether the arc chutes he encountered released asbestos fibers, or what concentration of asbestos fibers were released, if any. Accordingly, plaintiff’s testimony creates no genuine dispute of material fact about whether the Westinghouse arc chutes released airborne asbestos fibers at levels significant enough to constitute a substantial factor in causing plaintiff’s injury or at levels which were more likely than not sufficient to cause plaintiff’s injury.” The court also held that the plaintiff’s attempt to rely upon a previously precluded expert opinion from Dr. Vance was insufficient to raise a question of fact and granted Westinghouse’s motion for summary judgment.

Read the full decision here.

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