Asbestos Expert Witness Considered Reliable For Using EPA-Approved Testing Methods

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.