Experts’ exclusion denied when argued on weight rather than admissibility

lawThere exists a thin dividing line in deciding when an issue goes to the weight, rather than admissibility of the expert evidence. A few days back, the Washington district court in Lipson v. On Marine Services Co., LLC, denied Defendants’ motion to exclude three of the Plaintiff’s experts’ testimony, saying Defendants’ arguments were matters for vigorous cross examination and went to the weight and credibility of experts’ opinions, which were matters for the jury to decide.

Facts of the case

Plaintiffs James B. Turner and his wife Joanne K. Lipson filed a suit against Defendants ON Marine Services Co., LLC for Plaintiff’s alleged exposure to asbestos-containing products manufactured or distributed by Defendants, during his employment with Bethlehem Steel. In course of trial, Defendants moved to exclude or limit the testimony of three of Plaintiffs’ expert witnesses – Dr. William Longo, the material science expert witness; Dr. Carl Andrew Brodkin, the occupational health expert witness; and Ms. Susan Raterman, the industrial hygiene expert witness.

The material science expert witness

Defendants argued that Dr. Longo should be precluded from testifying about his work practice simulations because his test chamber did not replicate conditions similar to Plaintiff’s work environment and because he used an unreliable methodology of calculating asbestos dust concentrations.

The Court opined that Defendants’ argument went to the weight, rather than the admissibility of Dr. Longo’s testimony. The expert’s opinion rested upon a sound and widely accepted methodology. His video demonstrations using Tyndall lighting was also relevant and that its probative value was not substantially outweighed by the danger of undue prejudice.

The occupational health expert witness

Dr. Brodkin was prepared to offer medical causation testimony in support of Plaintiffs’ claims. Defendants’ primary challenge to his testimony was that, he would testify that every exposure to asbestos was a cause of Plaintiff’s injuries. The Court struck this motion as moot because Plaintiffs agreed that Dr. Brodkin would not present such testimony.

Defendants also argued that Dr. Brodkin would testify that all exposures were cumulative even though there was no medical support for how many exposures caused mesothelioma. Plaintiff claimed this issue was irrelevant as there was no dispute that Plaintiff was exposed to asbestos or had an asbestos-related disease. The Court concluded that Dr. Brodkin’s inability to identify a low threshold or bright line level went to the weight, not the admissibility, of his testimony.

Defendants’ final challenge to his testimony was based on his reliance on certain non-peer reviewed materials as well as the lack of direct evidence of specific products to which Plaintiff was exposed. The Court noted that it was a factor for the Court to decide the reliability of a material, which was an appropriate topic for cross-examination of Dr. Brodkin, and this again, went to the weight, not the admissibility, of his testimony.

The industrial hygiene expert witness

Ms. Raterman was challenged on the grounds that she gave speculative opinions, employed no methodology, could not quantify Plaintiff’s exposure to asbestos, had no formula for reducing exposure levels to determine bystander levels, and had no support for her assertion that every exposure causes mesothelioma.

The Court found the expert qualified and noted that her methodology was generally accepted within the industrial hygiene community, and that her inability to quantify Plaintiff’s dose and lack of quantifiable formula went to the weight, not the admissibility, of her opinion. Regarding her opinion being based on speculation, the Court found that this argument again went to the weight and not the admissibility, since her opinions were based on Plaintiff’s testimony as well as discovery documents detailing sales of Ferro products to Bethlehem Steel.

Conclusion

All three motions to exclude were said to be on the weight rather than on the admissibility of the experts and hence denied.

**Written for the web by the EWG Editorial Team

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