Court: United States District Court for the Western District of WashingtonJurisdiction: FederalCase Name: Jack v. Borg-Warner Morse TEC LLCCitation: 2018 U.S. Dist. LEXIS 135424
Facts
The plaintiffs brought this case on behalf of the decedent who developed and succumbed to mesothelioma. The plaintiffs claimed that the decedent had been exposed to asbestos between 1954-2001 while he worked as a machinist for the Navy, as a machinist at a shipyard, and later as a mechanic doing automotive work on personal vehicles.
It was alleged that the decedent had been exposed to asbestos from various products supplied and manufactured by the defendants and that this exposure resulted in the development of his fatal mesothelioma.
The plaintiffs brought various negligence and product liability claims and sought punitive and compensatory damages. Both parties relied on various experts to support their case, ranging from medical causation experts to asbestos expert. The defendants brought motions to exclude several of the plaintiffs’ witnesses, including one asbestos expert witness.
The Plaintiff Asbestos Expert Witness
The plaintiff retained a licensed geologist, mineralogist, and asbestos expert witness. The expert was certified as an asbestos inspector by the Environment Protection Agency and had 30+ years of experience in analyzing asbestos.
The plaintiffs’ asbestos expert opined that an unopened and unused box of gaskets found in the decedent’s garage contained chrysotile asbestos. After a doctor found chrysotile and tremolite asbestos in the decedent’s lungs and lymph nodes, the asbestos expert conducted subsequent testing using EPA methods to check the gaskets for tremolite asbestos and found various forms of amphibole asbestos—including tremolite, actinolite, and anthophyllite.
The asbestos expert witness’ testimony was challenged on two grounds: that his subsequent testing was untimely and that his results were based on speculation and were, thus, unreliable, irrelevant, and unhelpful.
Discussion
The court noted that upon the discovery of tremolite in the decedent’s lungs, the asbestos expert merely “fill[ed] in a gap” in his prior report by retesting the gaskets for tremolite. The court thus distinguished this case from Luke v. Family Care & Urgent Med. Clinics, 323 F. App’x 496, 500 (9th Cir. 2009) (the case on which the defendants had relied) where expert testimony was excluded as it was deemed to have “attempted to fix the weakness” identified by a summary judgment motion.
The court also noted that there was enough evidence and witness testimony to ascertain that the gaskets tested by the asbestos expert were manufactured and supplied by the defendants. The court also rejected the defendant’s argument that there was no evidence to show that the gaskets tested by the asbestos expert actually came from the decedent’s garage by observing that the chain of custody clearly showed that the gaskets had moved from the decedent to the plaintiff’s counsel to the asbestos expert. The court noted that the asbestos expert could be questioned about the chain of custody during cross-examination, but it was not enough to exclude the opinion.
The court also noted that the asbestos expert had used reliable methodology, dismissing the defendant’s argument that both his methods were used by scientists in the field and this was evinced by the record. The court noted that because the expert’s methodology was sound, his testimony was admissible. The defendant’s arguments about the specifics of the asbestos expert’s opinion could be raised during cross examination.
Held
The court held that the asbestos expert witness testimony was reliable, relevant, and helpful to a trier of fact, and thus, admissible.
About the author
Zach Barreto
Zach Barreto is a distinguished professional in the legal industry, currently serving as the Senior Vice President of Research at the Expert Institute. With a deep understanding of a broad range of legal practice areas, Zach's expertise encompasses personal injury, medical malpractice, mass torts, defective products, and many other sectors. His skills are particularly evident in handling complex litigation matters, including high-profile cases like the Opioids litigation, NFL Concussion Litigation, California Wildfires, 3M earplugs, Elmiron, Transvaginal Mesh, NFL Concussion Litigation, Roundup, Camp Lejeune, Hernia Mesh, IVC filters, Paraquat, Paragard, Talcum Powder, Zantac, and many others.
Under his leadership, the Expert Institute’s research team has expanded impressively from a single member to a robust team of 100 professionals over the last decade. This growth reflects his ability to navigate the intricate and demanding landscape of legal research and expert recruitment effectively. Zach has been instrumental in working on nationally significant litigation matters, including cases involving pharmaceuticals, medical devices, toxic chemical exposure, and wrongful death, among others.
At the Expert Institute, Zach is responsible for managing all aspects of the research department and developing strategic institutional relationships. He plays a key role in equipping attorneys for success through expert consulting, case management, strategic research, and expert due diligence provided by the Institute’s cloud-based legal services platform, Expert iQ.
Educationally, Zach holds a Bachelor's degree in Political Science and European History from Vanderbilt University.
