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Court Upheld Preclusion of Testimony of Asbestos Content Based On Visual Observation

Court of Appeals of Wisconsin, March 17, 2015

The plaintiff commenced an action claiming the decedent was exposed to asbestos while working between 1950 and 1991 at Milprint, a producer and printer of candy wrappers, snack bags, and cheese pouches. In support of her claim, the plaintiff relied on testimony of the decedent’s co-workers. In the lower court, the defendants made a series of motions in limine that were decided at the trial level. On appeal, the defendants challenged those rulings. Of particular interest was the trial court’s ruling that the co-workers could not testify as to asbestos content of the products based on their visual observation.

On appeal, the Court of Appeals upheld the trial court’s decision to exclude co-worker testimony that products contained asbestos by visual observation: “We agree with CR Meyer that determining whether a particular substance contains asbestos requires scientific, technical, or other specialized knowledge. The presence of asbestos in a substance is not ascertainable by the naked eye. Rather, absent specialized knowledge, scientific testing is required to determine the substance’s chemical and mineral composition. Thus, testimony that a substance contains asbestos falls outside the realm of lay opinion testimony.”

Read the full decision here.

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