Reliance of Dr. Eugene Mark on MSDS Sheets Not Enough to Overcome Court’s Exclusion of His Testimony Based on Daubert U.S. District Court for the Eastern District of North Carolina, Western Division, November 5, 2015

The court excluded the testimony of the plaintiff’s expert, Dr. Eugene Mark, on the basis of Daubert. After this order, defendant Ford filed a motion for summary judgment and a motion to dismiss, and defendant Honeywell filed a motion to reconsider the court’s summary judgment order; both were made pursuant to the court’s order excluding Dr. Mark. The plaintiff then moved to continue the trial to find a different causation expert and to file a motion for reconsideration. The court denied the motion to continue to seek a different expert. The plaintiff then filed a notice of suggestion of subsequently controlling decided authority, which Ford and Honeywell moved to strike.

Here, the court addressed two issues:  the plaintiff’s motion to reconsider the court’s exclusion of Dr. Eugene Mark’s testimony, and defendants Ford’s and Honeywell’s motion to strike. The court denied both motions. Regarding the motion for reconsideration, the plaintiff argued that the court misapplied Daubert and other case law; many of the issues raised by the plaintiff were already addressed in the prior order striking Dr. Mark’s testimony and the court refused to re-analyze. The court did analyze the plaintiff’s argument that the court did not credit Dr. Mark’s reliance upon Material Safety Data Sheets. Although Dr. Mark cited Ford and Honeywell MSDS sheets in support of his opinion that all types of asbestos cause mesothelioma, the opinion did not provide a reliable basis for determining the general level of exposure to chrysotile asbestos hazardous to humans.  “In sum, while a MSDS was deemed sufficient in (other cases) to provide confirmation of a generally hazardous level of exposure, under the facts and circumstances of the instant case, a clearer fit between the disputed general level of hazardous exposure and (plaintiff’s) actual exposure is required.”  The court reached this conclusion on the basis of multiple factors, none of which were present in case law cited by the plaintiff.

Further, although the defendants argued to strike the notice because it did not list any subsequent “controlling” authority, the notice conformed to the local rule and the question of whether the subsequent authority was controlling was a substantive determination the court made in the motion to reconsider.

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