In this federal court action, it is alleged that the plaintiff, Graham Yates, was exposed to asbestos brake products while working as a gas station attendant from 1956-1957, as a parts salesman and delivery driver for a Ford dealership in the 1960s, as a clerk in an automobile parts warehouse from 1961-1962, and from working on his own vehicles in the 1950s and 1960s. The defendant, Ford, brought a motion in limine to exclude expert testimony regarding corporate conduct. The court provided a lengthy analysis on each issue challenged on the expected testimony of the plaintiffs’ expert witnesses, pathologist Eugene Mark, M.D., and engineer and industrial hygienist Steve Hays.

The court allowed the experts to offer testimony as to the state of medical and scientific knowledge about asbestos hazards and prevention of disease caused by asbestos. As the court held: “Both experts are qualified on the grounds of experience and knowledge to opine as to the state of medical and scientific knowledge about the hazards of asbestos products at various times, and the state of medical and scientific knowledge about how to prevent asbestos disease at those times. Furthermore, on the same grounds, both experts are qualified to opine as to matters of causation. Their testimony concerns matters of specialized knowledge outside the everyday knowledge and experience of an ordinary juror, and their testimony on these matters will assist the jury in understanding when defendants should have known of the dangers from their products.”

The court had a mixed ruling on testimony regarding comparison of historical knowledge regarding asbestos, with information about the hazards of asbestos in the defendants’ historical documents. The court relied on the case of Deutsch v. Novartis Pharms. Corp., 768 F. Supp. 2d 420, 443 (E.D.N.Y. 2011) and stated, “Plaintiffs’ experts will be permitted to opine on whether defendants’ internal documents or the testimony provided by defendants’ employees includes information regarding the hazards of asbestos or proper methods to prevent asbestos disease. However, plaintiffs’ experts will not be permitted to affirmatively opine as to whether defendants knew the dangers of asbestos or proper methods of disease prevention, based on these internal documents or any other evidence. Such determination is reserved for the jury.”

On the issue of testimony regarding the timeliness and adequacy of the defendants’ actions, the court stated that this testimony implicates the qualifications of the plaintiffs’ experts, as well as the proper boundaries of expert testimony. The court found that the plaintiffs’ expert Hays was properly qualified to testify on appropriateness of industrial actions, but found the expected testimony to be outside the boundaries for proper testimony. As held by the court: “Because expert opinion specific as to whether a warning was ‘adequate’ or ‘inadequate’ would draw a legal conclusion, it is unhelpful to the jury and plaintiffs’ experts will not be allowed to offer such specific opinions.”

Regarding testimony as to the “known standard of care” the court ruled: “Plaintiffs’ experts may compare defendants’ conduct to specific standards or principles in their respective fields. However, they may not testify as to a ‘standard of care’ in medicine or industrial hygiene.” The plaintiffs’ experts were allowed to “opine as to the state of medical and scientific knowledge at various times, including the state of knowledge regarding how to prevent asbestos disease at those times.” They were also allowed to “opine on whether defendants’ internal documents or the testimony provided by defendants’ employees includes information regarding these subjects.”

The plaintiffs did not address the challenge to the qualifications of their other industrial hygienist, Arnold Brody, Ph.D. Therefore, the court held: “Brody may not offer opinion as to corporate conduct, given that plaintiffs have not carried their burden to offer evidence establishing the admissibility of his testimony on this subject.”

If you have questions about how these cases may impact your business, please contact:

• Joseph J. Welter (716.566.5457; jwelter@goldbergsegalla.com)
• Jason A. Botticelli (716.566.5460; jbotticelli@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Toxic Torts Practice Groups