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Plaintiff’s Expert Found Qualified to Testify and Pump Manufacturer Denied Summary Judgment on Frequency, Regularity, and Proximity Argument


Plaintiff’s Expert Found Qualified to Testify and Pump Manufacturer Denied Summary Judgment on Frequency, Regularity, and Proximity Argument

U.S. District for the Southern District of Illinois, August 28, 2015

In this federal court case, the plaintiff alleges that he was exposed to asbestos while serving in the Navy from 1954 to 1958 while aboard the USS Roosevelt, USS Bremerton, and USS Intrepid. Several defendants moved to limit the trial testimony of the plaintiff’s proffered expert, Dr. Jerome Spear, arguing that his report and testimony rely on the “every exposure” theory, his opinions are based on unreliable scientific methodology, and his testimony would not assist the jury. The defendant, Ingersoll-Rand Company (“Ingersoll-Rand”), also moved for summary judgment, arguing that plaintiff’s claims are beyond the statute of limitation, the plaintiff failed to provide evidence that Ingersoll-Rand manufactured or distributed pumps with asbestos-containing components used at the plaintiff’s work sites, and the plaintiff’s proof fails to meet the “frequency, regularity, and proximity” test. The court denied both motions in two separate decisions.

Regarding the motion in limine, the court found that Dr. Spear was qualified, that his opinion is based on reliable technique, and that his testimony would help lay jurors. On the every exposure argument, the court held: “This court need not decide whether an expert may offer testimony that each and every exposure to asbestos is a significant cause of asbestosis because that is not the subject matter of Mr. Spear’s opinions. Spear’s opinions and testimony are limited to the frequency, regularity and proximity of Plaintiff’s exposure to asbestos products in general and his conclusion that Plaintiff experienced a significant exposure to asbestos based on his work activities.”

Regarding the motion for summary judgment, the court found that the claims were not bared by the statute of limitations and that the plaintiff offered enough direct and circumstantial evidence to overcome summary judgment on the frequency, regularity, and proximity of the plaintiff’s exposure. On the issue of proof regarding asbestos-containing components of the defendant’s pumps, the court stated: “…plaintiff has produced sufficient evidence to withstand summary judgment on this issue. There is testimony identifying Defendant from its name on pumps seen by Plaintiff while employed by the Navy. The manual for the pumps indicated that asbestos containing materials were used in conjunction with the pumps, and Plaintiff changed packing on the pumps and inhaled asbestos dust while doing so.”

Read the first decision here.

Read the second decision here.

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