Overview original daubert decisions
In orders dated October 25, 2022 and November 9, 2022, U.S. District Court Judge Loretta Biggs provided some clarifications on her previous expert witness judgments in the matter of Walls v. Ford Motor Company, et al., a wrongful death from mesothelioma pending in Central County of North Carolina. The plaintiff, Laura Walls, alleges that her late husband, Robie Walls, developed mesothelioma as a result of exposure to products containing asbestos during his naval service and career as a truck mechanic. The plaintiff intends to call several experts to provide opinions that the defendants’ products caused the deceased’s illness. The defendants intend to present an expert testimony that friction products made with chrysotile asbestos did not and could not have caused the alleged injury, while alleging that the deceased had significant exposure to asbestos during his naval service. The court took up the various claims of the parties daubert challenged over two days of hearings in June 2022 and on August 11, 2022 made several important decisions regarding expert admissibility, as discussed herein.
plaintiff’s experts
The court ruled that the plaintiff’s experts, epidemiologist Dr. Murray Finkelstein, industrial hygienist Dr. Edwin Holstein and pathologist Dr. John Maddox, are qualified to provide general causality opinions, including that there is no safe exposure level to asbestos and that asbestos in automotive friction products can cause mesothelioma. While the ruling acknowledged disagreement between the parties’ experts on whether exposure to low doses of chrysotile asbestos can cause disease, the court will ultimately agree with Dr. Maddox and Dr. Holstein admit that there is no safe dose. In particular, the court was satisfied that such opinions are generally “accepted within the relevant scientific community” based on plaintiff’s experts’ reliance on publications by various government agencies, such as the EPA, OSHA and NIOSH.
Regarding specific causality, the court will Dr. Holstein and Dr. Maddox allow the opinion that each of the defendant’s products contributed to the deceased’s mesothelioma, but excludes opinions that each of the defendant’s products was a “significant factor” in causing the deceased’s mesothelioma disease. In addition, the court granted defendants’ motion to have both the specific causality and the significant factor opinions of Dr. rule out Finkelstein. The court found that Dr. Finkelstein barely explained his methodology and failed to individually assess exposure to the defendants’ products.
experts of the defendants
With respect to the defendants’ experts, the court granted the plaintiff’s motion to exclude the defendants’ naval experts: US Navy Captain Margaret McCloskey and Christopher Herfel. The court found that their exposure reports “are speculative and not based on sufficient facts or data”. The court further ruled that McCloskey and Herfel’s testimony regarding the presence of asbestos on the ships the decedent served was a copy of the testator’s testimony and would not help the jury. The court also ruled in favor of the plaintiff by accepting certain expert testimony from pathologist Dr. Tim Oury and the pulmonologist Dr. James Crapo ruled out. In particular, the court ruled that Dr. Oury and Dr. Crapo will not be allowed to testify that exposure to automotive friction products categorically cannot cause mesothelioma because the court did not find that Dr. Oury or Dr. Crapo provide a sufficient scientific basis for opinions in their reports. However, the court will appoint defense expert Dr. Fionna Mowat (biomedical engineer/risk assessment) and epidemiologist Dr. allow Dominik Alexander to provide similar opinions that it deems reliable and adequately supported.
The court also granted the plaintiff’s motions to exclude a defense expert’s testimony that exposures below a certain range do not increase the risk of mesothelioma and statements quantifying the difference in potency between different types of asbestos fibers. The court was persuaded by the plaintiff’s arguments that such opinions lacked mathematical precision and were based on unreliable methodology.
Finally, although not strictly a daubert On appeal, the court considered and denied the plaintiff’s motion to bar cross-examination of her “manufactured chrysotile” experts. The court noted that such investigations may be relevant to enable the defendants to cross-examine the reliability and credibility of the plaintiff’s experts’ reports and would not be barred before the trial.
Subsequent to the court’s verdicts, several of the defendants asked the court to review its verdicts regarding the testimonies of witnesses Herfel, McCloskey and Dr. to reconsider or otherwise specify Crapo. The defendants specifically asked to allow the naval experts to testify authenticating US Navy documents during the trial. They further argued that Dr. Crapo did not intend to mean that chrysotile could categorically not cause mesothelioma, but that the deceased’s exposure to chrysotile could not have caused mesothelioma. The plaintiff also applied for permission to supplement the record of Dr. Holstein in response to defendants’ complaint. daubert movements.
Recent Order Clarification Decisions
In recent judgments on both the defendants’ motions for reconsideration and the plaintiff’s motion for approval of the supplement to the file, as opposed to the defendants’ motions against Dr. Holstein, the court largely stuck to its earlier decisions. However, the court has offered some notable clarifications on the rulings. The court clarified that the defendants’ naval experts, Herfel and McCloskey, will be permitted testimony to authenticate US Navy documents as appropriate, but the court maintained its earlier decision regarding other limitations on their testimony. In addition, with respect to Dr. Crapo noted that his previous order should have noted that plaintiff’s motion was “approved in part and denied in part.” The court added that if Dr. Crapo’s testimony does not specifically state that chrysotile asbestos categorically cannot cause mesothelioma, the testimony complies with the court’s order and would be allowed subject to other objections. The court declined to reconsider other aspects of its decisions relating to the defendants’ experts. The court also denied plaintiff’s motion to have the record in support of Dr. Holstein, which would only allow an inadmissible, unlimited substantiation of the expert’s opinion.
