Court Rejects Plaintiffs’ Experts’ Opinions Because They Did Not Read Plaintiff’s Deposition Testimony and Grants Summary Judgment Based on Insufficient Product Exposure

In this mesothelioma case, plaintiff James Shiffer worked at a power plant for several months in 1969 and 1970, during which time he claimed exposure to a Westinghouse turbine with asbestos-containing components that was present at the plant. Westinghouse moved for summary judgment because “…[t]here is no dispute Shiffer did not repair or maintain any Westinghouse equipment, and did not install or remove any insulation material himself. Nor is there any dispute that no already-installed insulation was removed or disturbed during Shiffer’s time at Ginna.” In opposition to the motion, the plaintiff submitted three expert affidavits, all relying on a declaration signed by the plaintiff, but none of the experts actually reviewed his deposition testimony. The trial court excluded all three experts’ opinions on the ground that they lacked proper foundation and were speculative.

On appeal, the court affirmed the granting of summary judgment, stating: “Despite the manifest import of Shiffer’s deposition testimony, Shiffer also did not provide his experts with it, but provided them with only his cursory declaration and the installation progress reports. Thus, the experts, whose opinions on causation were essential to Shiffer’s case . . . considered a significantly incomplete universe of information, leaving them without an adequate basis to conclude, as Depasquale and Horn did, that Shiffer’s exposure to Westinghouse-related asbestos was hazardous and a substantial cause of his mesothelioma. An expert’s opinion is only as good as the facts on which it is built. . . . This is not simply a case in which the expert’s reasoning was not sufficiently fleshed out. . . . Rather, the problem here is foundational. The experts did not analyze the complete set of facts. Accordingly, the experts’ opinions did not provide evidence Shiffer suffered exposure, let alone a hazardous level of exposure, to Westinghouse-related asbestos at Ginna, and the trial court did not err in excluding such conclusions from the summary judgment record.”

Read the full decision here.