For the first time since 1989[1], Connecticut’s Supreme Court addressed the plaintiff’s burden of proof in the asbestos context, in Wayne Bagley v. Adel Wiggins Group et al, SC 19835 (11/7/17).  In a win for defendants facing such claims, the court found that plaintiffs bringing claims pursuant to the Connecticut Product Liability Act (under both strict liability and negligence theories) require expert testimony to prove exposure at levels sufficient to cause their asbestos-related disease, and not merely general testimony that an asbestos-containing product generated an indefinite amount of dust in the plaintiff’s vicinity.

The decedent, Wayne Bagley (“Bagley”) worked at Sikorsky Aircraft Corporation (“Sikorsky”), and alleged exposure to an adhesive product used to bind interior components of helicopter blades. The material, an epoxy, came in the form of a sheet with strippable release paper, it contained 8.6 percent asbestos, and was manufactured by Wyeth Holdings’ predecessor. Employees removed any excess epoxy with chisels or by sanding. The Bagley estate called a former co-worker to testify that Bagley’s work area overlooked the blade shop, that Bagley’s daily responsibilities required him to enter the sanding room frequently, and that the sanding process created visible dust to which Bagley and he would have been exposed to.

At trial, the plaintiff presented causation expert testimony from Dr. Arnold Brody and Dr. Jerrold Abraham. Dr. Brody testified in detail regarding the process by which asbestos causes mesothelioma. However, he acknowledged on cross-examination that his testimony was based upon the assumption that a person has already been exposed to respirable asbestos fibers.

Dr. Abraham, a pulmonary pathologist testified that a proximate cause of the decedent’s mesothelioma was the exposure to asbestos fibers from the epoxy while the decedent passed through the sanding room of the blade shop. While discussing causation, Abraham was given a hypothetical scenario that reflected Bagley’s alleged exposure during his ten-month tenure as the manufacturing engineer. In response, Abraham testified that the scenario was a clear description of an exposure to asbestos fibers emitted from working with epoxy, and that the mere presence of dust indicated inadequate control of the product. On cross-examination, Abraham acknowledged that he never inspected the epoxy, that he did not speak with anyone at Sikorsky about the ventilation in the sanding room, and that he did not know of any studies concerning fiber release of the product when manipulated.

Once the plaintiff rested, Wyeth moved for a directed verdict, arguing that the estate failed to present any evidence of either a design defect or that asbestos dust from the epoxy caused the decedent’s death. Moreover, the defendant argued that expert testimony is required to prove the dangerousness of the epoxy, as it was a complex product for which an ordinary consumer could not form a safety expectation. The trial court denied the motion for directed verdict reasoning that the plaintiff presented sufficient evidence from which the jury could conclude that the epoxy was unreasonably dangerous and that the defendants were negligent in failing
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Plaintiff’s attempt to preclude testimony of expert witness in asbestos related products liability litigation meets impasse—court refuses to circumscribe competent experts to narrowly defined fields or specific licensure.

On Friday, June 9, 2017, Presiding Justice Alice Gibney of the Rhode Island Superior Court, Providence County, issued a decision denying a plaintiff’s motion to preclude the expert testimony of Dr. Michael Graham, proffered by the Defendant Crane Co., in an asbestos-related products liability action.

Plaintiff argued that Dr. Graham was not qualified to provide expert testimony regarding causation of asbestos-related diseases and sought to preclude his testimony, pursuant to Rhode Island Rule of Evidence 702, which provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine ac fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion.

Defendant objected and maintained that the Court should allow Dr. Graham’s testimony as he was an experienced and qualified pathologist.  In the alternative, Defendant requested that any ruling on Plaintiff’s Motion be reserved until Dr. Graham had the opportunity to present his qualifications to the Court.

Plaintiff argued that Dr. Graham’s background as an expert pathologist, expert medical examiner, and expert at determining cause of death did not render him an expert in causation in connection with asbestos-related diseases.  Plaintiff noted that Dr. Graham’s professional publications were almost completely devoid of reference to asbestos and discussion of mesothelioma.  As a result of this alleged deficiency, Plaintiff contended that the testimony was not relevant and that it would be of no assistance to a jury.  Plaintiff urged the Court to circumscribe that limits of permissible expert testimony in a manner analogous to medical malpractice litigation—narrowing competent experts to those with specialized qualifications in narrowly defined fields.

Defendant countered by asserting that Dr. Graham was a board certified pathologist, had studied asbestos-related diseases for over thirty years and had the opportunity to review over 1000 case of asbestos-related diseases throughout his career.  Defendant also emphasized that Dr. Graham testified in more than 750 cases within the United States and specifically reviewed the Plaintiff’s pathology in forming his opinions in the case.

In reaching its decision, the Superior Court reaffirmed that “before admitting expert testimony, the trial justice must evaluate whether the testimony that a party seeks to present to the jury is relevant, within the witnesses’ expertise, and based on an adequate factual foundation.”  (Internal citation and quotation omitted).   The Court explained that it would evaluate the expert’s qualifications by reviewing his education, training, employment and experiences.  Thereafter, the Court would endeavor to determine whether the expert would present scientific, technical, or other specialized knowledge that would assist the trier of fact.

Justice Gibney quoted to the Rhode Island Supreme Court’s Opinion in Raimbeault v. Takeuchi Mfg. U.S., Ltd., 772 A.2d 1056, 1061 (R.I. 2001) with approval for the proposition that an expert witness “need not
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On January 31, 2017, President Trump nominated Judge Neil Gorsuch to the U.S. Supreme Court. Although time will tell, this post assumes he will make it through the Senate confirmation process, and take his place at 1 First Street, Northeast. Currently, Judge Gorsuch sits on the United States Court of Appeals for the Tenth Circuit, having been appointed to same by President George W. Bush on July 20, 2006.  While at the Tenth, Judge Gorsuch issued two interesting decisions which may prove instructive as to how he views the Court’s role as the evidentiary gatekeeper[1] of expert testimony. A discussion of those two cases, and what they foretell with regard to “all exposures contribute” testimony follows.

Graves v. Mazda Motor Corp., 2010 WL 5094286.

This case arises out of Mrs. Graves’ trip to Hattiesburg, Mississippi. Upon arriving at the Hattiesburg airport, she picked up her rental car—a Mazda 6 with an automatic transmission. At the end of her stay and while en route to the airport to depart for home, Mrs. Graves got lost and pulled over to ask for directions. When exiting the car, Mrs. Graves left the engine running but thought she had placed the car’s shifter in “park.” As it turns out, the gear shifter was in “reverse” and, when she stepped out, the car rolled backwards, knocked her to the ground, and ran her over. Mrs. Graves sought damages from Mazda for the injuries she suffered, alleging that the company’s gear shifter was defectively designed. In support of her claim, she offered expert testimony from an expert human factors engineer. The district court, however, excluded the expert’s testimony as unreliable and then, given the absence of any other probative evidence of liability, granted Mazda’s summary judgment motion. On appeal, the plaintiff sought to undo the district court’s decision.

The district court noted that the expert failed to provide any data or industry standard, or to conduct any testing to confirm his view that Mazda’s gear shift design was defective. Instead, the expert’s proffered testimony that merely described how the Mazda shifter works, and from this, his leap to the conclusion that Mazda’s design fails to allow for “smooth” shifting and so is defective and unreasonably dangerous.

Judge Gorsuch, writing for the three judge panel (Kelly, J., Ebel, J.) noted that without any reference to data suggesting how “smoothly” an ordinary consumer would expect a gear shift to move, without any confirming evidence indicating how Mazda’s design might cause shifting troubles for ordinary drivers, without any reference to how engineering standards might have counseled against Mazda’s gear shift design, and without any other evidence suggesting its reliability, the district court was right to exclude the expert’s testimony. Judge Gorsuch noted that the expert did provide a list of “safety systems analysis” techniques that, he contended, Mazda should have used in assessing its design, but even here, the expert failed to offer any evidence suggesting that Mazda actually failed to use these techniques, or if it
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