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State of The Art Experts Drs. Markowitz and Rosner Found Qualified to Testify


State of The Art Experts Drs. Markowitz and Rosner Found Qualified to Testify

U.S. District Court for the Western District of Missouri, Western Division, September 3, 2015

In this case, the plaintiff, John New, alleged exposure to asbestos while working at various businesses in Kansas and Missouri. Defendant Caterpillar Incorporated moved to strike the expert state of the art testimony of historians Dr. Gerald Markowitz and Dr. David Rosner, arguing that “…(1) their testimony will not assist the jury in deciding any issue in this case; (2) they fail to qualify as ‘experts’ under Rule 702; (3) their report was written solely for the purposes of litigation; (4) their report is unreliable because it has not been subjected to peer review; and (5) they will impermissibly testify about Caterpillar’s state of mind, thereby deciding this jury issue.”

The motion was denied and the court found that the testimony of the experts would assist the jury in determining what was known about the dangers of asbestos during the relevant time periods, and that they were qualified to give such testimony despite not having medical degrees, as argued by Caterpillar. On the issue that the experts’ report was written solely for litigation, the court stated: “To the extent Caterpillar has any concerns about the bias created by the donations for the report or the significant amount of annual income earned for their expert testimony, Caterpillar may explore those topics through cross-examination.” The court found it unnecessary that the experts’ report be subject to peer review as it was founded upon sound methodology.  The court also held that the experts were not going to testify about what Caterpillar knew, but rather about what was knowable at certain points in history. As the court held: “While the jury may rely on this testimony to draw inferences about what Caterpillar knew or should have known, that does not transform Drs. Markowitz’s and Rosner’s testimony into direct evidence about Caterpillar’s state of mind, a topic obviously beyond their personal knowledge or expertise. The Court thus finds that their testimony does not impermissibly invade the jury’s province of making factual determinations.”

Read the full decision here.

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