"Virtually All" Does Not Mean"All": Federal Court Requires Proper Factual Foundation for Expert Opinion in Granting Summary Judgment in Asbestos Case

12/2/2013

Over the past five years, Federal Court judges presiding over asbestos cases have shown a greater willingness than their state court counterparts to grant motions for summary judgment and require experts to have a factual and/or scientific basis for their opinions. Highlighting this increasing trend is Judge Eduardo Robreno's October 4, 2013 decision in Donald Bell v. Arvin Meritor, Inc., et al., pending in the U.S. District Court for the Eastern District of Pennsylvania. Judge Robreno granted Carquest Corporation's Motion for Summary Judgment against a former mechanic who alleged he was exposed in the late 1970s to asbestos-containing brake linings manufactured by Carquest. Carquest contended in its motion that plaintiff's evidence was insufficient to establish that its product caused Mr. Bell's illness.

The plaintiff, Donald Bell, alleged that during his work as an auto mechanic he was exposed to respirable dust emanating from Carquest brakes. These allegations were supported by co-worker's deposition testimony. The plaintiff retained an expert witness, Charles Ay, who declared "virtually all" brake linings during the alleged exposure period contained 25% to 40% chrysotile asbestos. He also opined it was more likely than not the plaintiff was exposed to asbestos during his work with Carquest brakes. Mr. Ay admittedly did not have any personal knowledge of Mr. Bell's exposure to Carquest brakes.

In his decision on Carquest's Motion, Judge Robreno focused on two issues: (1) the factual basis of Charles Ay's expert opinion, and (2) evidence that "virtually all" brake linings contained chrysotile asbestos fibers. Judge Robreno ruled that Mr. Ay's opinion regarding the asbestos content of brakes was not based on sufficient facts as required by the Federal Rules of Evidence and was, therefore, impermissibly speculative and inadmissible.

Judge Robreno also found that plaintiff presented no evidence that Carquest's brakes contained asbestos. The assertion that "virtually all" brake linings contained asbestos was an implicit admission there were some brake lining materials which did not contain asbestos. Thus it would be impermissible conjecture for a jury to conclude that plaintiff was exposed to asbestos from a product manufactured or supplied by Carquest.

This decision illustrates how Federal Court judges remain stalwart in requiring experts in asbestos cases to have proper factual and scientific basis for their opinions. Plaintiffs in asbestos cases must be able to casually link the Plaintiff's alleged exposure to a defendant's product, and an expert's general, blanket statement about the asbestos content of a product type is insufficient to defeat a defendant's summary judgment.

We continually monitor developments in asbestos litigation, toxic torts, and all matters important to our clients. Please contact Nancy Kelly at nkelly@governo.com or William Gallitto at wgallitto@governo.com if you have any questions or would like additional information.


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