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Naval Expert’s Testimony Limited on Duty to Warn Issue

United States District Court for the Eastern District of Louisiana, September 29, 2022

The Callen Cortez (“Plaintiff”) matter has been previously reported by the Asbestos Case Tracker. At current issue is the plaintiff’s motion in limine to exclude the testimony of Dr. Samuel Forman, a former Navy officer and occupational medicine specialist, as his testimony would lack relevancy under Rules 403 and 702 of the Federal Rules of Evidence. Plaintiff also argued that the testimony would not “fit” under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Defendant Westinghouse opposed the motion, contending that Dr. Forman’s testimony goes to two potential defenses: government contractor defense and sophisticated-purchaser defense.

The court precluded any potential testimony from Dr. Forman regarding Westinghouse’s duty to warn of insulation in connection with Westinghouse turbines as the Court granted summary judgment to Westinghouse on this claim. However, the court will allow testimony from Dr. Forman regarding Westinghouse’s duty to warn of insulation in connection with Westinghouse gaskets as the court denied summary judgment to Westinghouse on this claim. Instead, the court agreed with Westinghouse that “Forman’s testimony about the knowledge of commercial and naval-contract shipyards about the hazards of asbestos, by virtue of their dealings with naval and U.S. Federal Maritime Commission safety requirements for shipyards, is relevant to whether Avondale was a sophisticated purchaser of asbestos products and thus was not owed a duty to warn from Westinghouse.” Even though the plaintiff never worked on a Navy ship, the court determined that Dr. Forman’s testimony could go to “what Avondale would have known about the hazards of asbestos from working as a Navy shipbuilding contractor.”  Thus, the court granted Plaintiff’s motion in limine in part.

Read the full decision here