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Showing 8 posts in Experts.

Utah Federal Court Rejects “Every Exposure” Theory

Adding to the growing chorus of courts that have rejected the “every exposure” theory (sometimes referred to as the “any exposure” theory), under which plaintiffs argue that each and every exposure to a toxic substance is sufficient to establish liability for certain injuries, a federal court in Utah dismissed a plaintiff’s claims for failing to establish causation. Smith v. Ford Motor Co., No. 2:08-cv-630 (D. Utah Jan. 18, 2013), available at www.bdlaw.com/assets/attachments/Smith.pdf. (For other courts that have reached similar conclusions, see Maryland Appellate Court Rejects “Any Exposure” Theory, Toxic Tort and Product Liability Quarterly, October 25, 2012, available at http://www.environmentallawportal.com/Maryland-Court-Rejects-Any-Exposure-Theory; Pennsylvania High Court Rejects “Any Exposure” Theory, Toxic Tort and Product Liability Quarterly, July 18, 2012, available at http://www.environmentallawportal.com/Pennsylvania-High-Court-Rejects-Theory). The District Court held that plaintiff’s expert was precluded from testifying that “every exposure” to asbestos-containing products manufactured by the defendant contributed to plaintiff’s mesothelioma. Smith, slip op. at 3, 10. Read More ›

California Court Denies Award for Damages Down to Background Levels

Striking a blow to plaintiffs seeking damages for cleanups down to “background” levels, the United States District Court for the Southern District of California dismissed an action by the State of California and the City of San Diego seeking damages due to soil and groundwater contamination on city-owned land around and under the San Diego Qualcomm Stadium. California v. Kinder Morgan Energy Partners, L.P., No. 07-CV-1883-MMA (S.D. Cal. Jan. 25, 2013), available at www.bdlaw.com/assets/attachments/Kinder.pdf. Eliminating the lynchpin of the City’s case, the court excluded testimony by the City’s expert under Federal Rule of Evidence 702 and Daubert, and granted summary judgment to the defendant. Kinder Morgan, slip op. at 13, 51-52. Read More ›

Pennsylvania Court Allows “Every Exposure” Testimony When Combined With Other Evidence

Distinguishing the recent Pennsylvania Supreme Court’s decision in Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. May 31, 2012) (see Pennsylvania High Court Rejects “Any Exposure” Theory, Toxic Tort and Product Liability Quarterly, July 18, 2012, available at http://www.environmentallawportal.com/Pennsylvania-High-Court-Rejects-Theory), which rejected the “every exposure” theory to prove causation, a Pennsylvania appellate court upheld a nearly $1 million judgment in an asbestos injury case against a welding products company. Wolfinger v. 20th Century Glove Corp. of Texas, No. 1393 EDA 2011 (Pa. Super. Ct. Feb. 14, 2013), available at www.bdlaw.com/assets/attachments/Wolfinger.pdf. The court held that the jury weighed other evidence in conjunction with the expert’s testimony on “every exposure” and therefore the state Supreme Court’s decision in Betz did not require reversal of the jury’s verdict. Wolfinger, slip op. at 23-24.  Read More ›

Ninth Circuit Vacates $9M Jury Award For Lack of Daubert Hearing

Finding that the trial court failed to exercise its gatekeeping responsibility to determine whether expert testimony is relevant and reliable, the U.S. Court of Appeals for the Ninth Circuit vacated a $9.4 million mesothelioma award.  Barabin v. AstenJohnson, Inc., No. 10-36142 (9th Cir. Nov. 16, 2012), available at www.bdlaw.com/assets/attachments/Barabin.pdfThe Ninth Circuit held that the district court abused its discretion when it failed to conduct a Daubert hearing or otherwise make relevance and reliability determinations regarding the expert’s testimony.  Barabin, slip op. at 7.   Read More ›

Pennsylvania High Court Rejects “Any Exposure” Theory

Dealing a blow to plaintiffs who lack evidence of a significant exposure, Pennsylvania’s highest court rejected the testimony of a plaintiff’s expert that “any exposure”  to asbestos – regardless of the amount, duration or frequency – could have caused plaintiff’s injury.  See Betz v. Pneumo Abex LLC, No. 38 WAP 2010 (Pa., May 23, 2012), available at http://www.bdlaw.com/assets/attachments/Betz.pdf.  The Pennsylvania Supreme Court, finding that the intermediate appellate court had incorrectly reversed the trial court’s decision to preclude the expert’s “any exposure” theory, held that the testimony did not meet the Frye standard of scientific reliability.  Betz, slip op. at 53. Read More ›

Fifth Circuit Excludes Expert Opinion for Failing to Establish Causation in Exposure Case

Emphasizing that expert causation testimony must be based on reliable scientific grounds, the Fifth Circuit upheld the exclusion of testimony that failed to demonstrate a causal link between chemical exposure and chronic lung disease.  See Johnson v. Arkema Inc., No. 11-50193 5th Cir. June 20, 2012), available at http://www.bdlaw.com/assets/attachments/Arkema.pdf.  In a per curiam decision, the appellate court affirmed a district court’s determination that two expert witnesses did not provide reliable evidence that a repairman’s chemical exposure could have proximately caused his restrictive lung disease and pulmonary fibrosis. Arkema, slip op. at 1-3.  The circuit court reversed the lower court’s grant of summary judgment, however, finding that plaintiff’s claims for acute injuries did not require expert testimony to establish causation.  Id. at 1.  Read More ›

Court Allows Pain and Suffering Question to Go to Jury in Chemical Plant Accidental Death Case

Reaffirming the availability of damages related to short periods of pain and suffering that may occur prior to loss of consciousness, the United States District Court for the Western District of Kentucky denied a defendant’s motion for summary judgment on a claim for pain and suffering associated with a worker’s accidental death at a chemical plant. Faulkner v. ABB, Inc., No. 5:08-CV-212 (W.D. Ky. Apr. 4, 2012), available at http://www.bdlaw.com/assets/attachments/Faulkner.pdf.  The district court held that plaintiff’s evidence provided a disputed issue of fact as to whether decedent was alive long enough to experience some pain and suffering before his death.  Faulkner, slip op. at 6-7.   Read More ›

New York Appellate Court Finds Plaintiffs in Toxic Mold Case Could Satisfy Frye Standard

Giving a potential boost to plaintiffs claiming injury due to toxic mold exposure, a New York appellate court held that the plaintiff-appellant’s toxic mold claims may meet the Frye standard of scientific reliability. Cornell v. 360 W. 51st St. Realty, No. 01643 (N.Y. App. Div. Mar. 6, 2012), available at http://www.nycourts.gov/reporter/3dseries/2012/2012_01643.htm. The appellate court found that the lower court had incorrectly interpreted the appellate court’s earlier decision in Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416 (2008), when it held that the expert testimony put forth by the tenant was inadmissible and that the tenant did not meet her burden to quantify her exposure level to the mold.  Read More ›