LexisNexis® Legal Newsroom
Expert Witness Struck, But Treating Physician Stays In Tobacco Death Suit

MIAMI - A federal judge in Florida on Aug. 6 struck a tobacco wrongful death plaintiff's expert on addiction pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579 $(1993$)) but allowed a plaintiff's treating physician who offered a key diagnosis to testify (Ronnie L. Jacobson...

Hawaii Judge Vacates Motion Seeking To Bar Hypothetical Navy Warning Opinions

HONOLULU - A Hawaii federal judge on Aug. 20 vacated a motion seeking to bar allegedly speculative expert opinions regarding how the U.S. Navy would have handled asbestos-related warnings, saying the plaintiffs may renew the motion after the Ninth Circuit U.S. Court of Appeals addresses the matter (Robert...

Judge: Tobacco Plaintiff May Not Claim Punitive Damages For Unintentional Torts

MIAMI - A tobacco wrongful death plaintiff may not recover punitive damages for the unintentional torts of strict liability and negligence, a Florida federal judge said in an Aug. 26 decision that allowed punitive damages on other counts and otherwise rejected the defendants' motion for summary judgment...

Court Affirms $1.29M Award, Rejects Characterization Of 'Any Exposure' Testimony

PHILADELPHIA - A welding rod defendant mischaracterizes an expert's careful consideration of the potential causes of a man's lung cancer and resulting conclusion that it arose from asbestos exposures as the "any exposure" theory, a Pennsylvania appeals court held Sept. 5 (Helen Campbell...

Divided Pa. Court Rejects 'Every Exposure' Testimony, Reverses $14.5M Verdict

PHILADELPHIA - An asbestos expert's testimony that "there are no innocent exposures" mirrors the "every exposure" testimony previously rejected by the Pennsylvania Supreme Court, a divided state Superior Court panel held Sept. 5 (Darlene Nelson executrix of the estate of James...

Texas Top Court Hears Arguments Over Causation In Mesothelioma Cases

DALLAS - The Texas Supreme Court heard oral arguments Sept. 9 on whether the state's case law imposing "but-for" causation applies in mesothelioma cases (Susan Elaine Bostic, et al. v. Georgia-Pacific Corp., No. 10-0775, Texas Sup.).

Differential Diagnosis Ruled Unreliable In Benzene Leukemia Case

BOSTON - The claims of a former refrigeration technician that benzene exposure caused acute promyelocytic leukemia (APL) have been dismissed by a Massachusetts federal judge, who said in a Sept. 6 opinion that use of differential diagnosis by the plaintiffs' expert to rule out other causes was unreliable...

Florida Federal Judge Says Tobacco Plaintiff Can't Bring Evidence Of Additives

MIAMI - A tobacco wrongful death plaintiff may not introduce evidence of additives in cigarette tobacco, a Florida federal judge said in a Sept. 11 decision, because an expert's report does not touch on the question (Ronnie L. Jacobson, et al. v. Philip Morris USA Inc., et al., No. 1:12-cv-23781...

Tobacco Plaintiff Allowed To Bring Evidence Of Ammonia Manipulation

MIAMI - A tobacco wrongful death plaintiff may introduce evidence that tobacco companies used ammonia compounds allegedly to boost the addictiveness of cigarette tobacco, and a disputed expert will be allowed to testify with limitations, a Florida federal judge said in a Sept. 20 decision (Ronnie L....

Pa. Top Court Declines 'Each And Every' Testimony Appeal In Asbestos Case

HARRISBURG, Pa. - The Pennsylvania Supreme Court on Oct. 10 denied a petition for appeal challenging a lower court's admission of "each and every" exposure testimony in a welding rod case when other evidence of causation also exists (Michelle Wolfinger, administratrix of the estate of Robert...

2 Pegasus Oil Spill Putative Class Actions Survive Dismissal Motions

LITTLE ROCK, Ark. - Two putative class action lawsuits seeking property damage compensation stemming from the rupture of Exxon Mobil Corp.'s Pegasus pipeline that inundated Mayflower, Ark., with heavy Canadian tar stands oil survived motions to dismiss Oct. 31 in U.S. District Court for the Eastern...

Court Affirms Expert Rulings, Asbestos Verdict For Auto Companies

LOS ANGELES - A trial judge did not err in barring an asbestos expert from testifying regarding publications not in evidence nor in limiting cross-examination of two defense witnesses in a trial netting a defense verdict for automobile manufacturers, a California appeals panel held Oct. 30 (Christie...

Rhode Island Judge: Plaintiff May Have Defendants' Photos From Site, Not Documents

BRIDGEPORT, R.I. - A widow is entitled to photographs taken during a walkthrough of a facility where asbestos exposure allegedly occurred but has not shown sufficient need to obtain copies of requested documents, a Rhode Island judge held Nov. 6 (Gloria Cary, et al. v. American Optical Corp., et al....

New York Justice Affirms Ruling Allowing Deposition Of Expert In Italy

NEW YORK - An unclear mesothelioma diagnosis warrants deposing a treating physician who moved to Italy, a New York justice held in an opinion posted Nov. 7 (John W. Adler v. 3M Co., et al., No. 190392-2012, N.Y. Sup., New York Co.; 2013 N.Y. Misc. LEXIS 5101).

5th Circuit Affirms Expert Exclusion, Summary Judgment In Painter's Benzene Case

NEW ORLEANS - A trial court correctly excluded testimony linking a painter's multiple myeloma to workplace exposure to benzene because the expert assumed facts substantially different from the undisputed record, a Fifth Circuit U.S. Court of Appeals panel held Nov. 15 (Craig Moore, et al. v. International...

R.I. Judge Reverses Course, To Conduct In Camera Review Of Bankruptcy Submissions

PROVIDENCE, R.I. - In camera review of asbestos bankruptcy trust forms is necessary to determine whether they contain discoverable evidence of a man's exposure to Crane Co.'s products, a Rhode Island judge held Nov. 18 in an order granting reconsideration (Rosie K. Sweredoski, et al. v. Alfa...

N.C. Court Affirms Admission Of Experts Testifying On Their Area Of Expertise

RALEIGH, N.C. - A workers' compensation commission properly admitted the testimony of a veterinarian on the issue of animal studies in an asbestos-related esophageal cancer case, the North Carolina Court of Appeals held Dec. 3 (Paulette Smith Wise, executor of the estate of Harvey Smith v. Alcoa...

Judge: 'Identified Exposure' Testimony Differs From 'Each And Every Exposure'

SEATTLE - An expert's testimony that each "identified exposure" to asbestos substantially contributes to mesothelioma differs from the type of "each and every" exposure challenged by a defendant, a Washington federal judge held Dec. 13 in allowing trial testimony from three experts...

Jury Deadlocks In Marine-Parts Asbestos Exposure Case

SEATTLE - A Washington federal judge declared a mistrial in an asbestos action after the jury reported Dec. 16 that it was deadlocked and that additional deliberation was unlikely to change the result (Joanne K. Lipson, et al. v. ON Marine Services Co. LLC, Ferro Engineering Division, No. 13-1747, W...

Sophisticated Purchaser Defense Requires Affirmative Steps, Judge Says

HONOLULU - The sophisticated user doctrine applies in both negligence and strict liability contexts under maritime law, but a manufacturer does not prevail because it cannot show that it considered whether the U.S. Navy would provide the necessary warnings about the hazards of asbestos, a Hawaii federal...

Florida Appeals Court: Engle Opt Out Does Not Enjoy Class Tolling

TALLAHASSEE, Fla. - An estate whose representative opted out of Engle v. Liggett Group Inc. (945 So. 2d 1246 [Fla. 2006]) and failed to file her wrongful death lawsuit within the statute of limitations may not take advantage of claim tolling offered by class membership, Florida's First District Court...

Florida Appeals Court Affirms Dismissal Of Engle Opt Out

TALLAHASSEE, Fla. - An estate whose representative opted out of Engle v. Liggett Group Inc. (945 So. 2d 1246 $(Fla. 2006$)) and failed to file a wrongful death lawsuit within the statute of limitations may not take advantage of claim tolling offered by class membership, the First District Florida Court...

New York Justice Bars Asbestos Expert From Testifying On Talc Contamination

NEW YORK - A plaintiffs' expert modified a widely accepted testing criteria before concluding that a defendant's talc contained asbestos, a New York justice held Jan. 9 in precluding James Millette's testimony under Frye (Lawrence Bernard and Marilyn Bernard, et al. v. Brookfield Properties...

9th Circuit Finds Judge Failed To Properly Vet Asbestos Experts, Testimony

SEATTLE - A Washington federal judge impermissibly delegated his role as gatekeeper under Daubert v. Merrell Dow Pharm., Inc. (509 U.S. 579 $(1993$)) to the jury when he admitted two experts and "each and every" exposure testimony in an asbestos case that produced a $10.2 million verdict, a...

Rhode Island Judge Allows Replacement Naval Expert's Trial Testimony

PROVIDENCE, R.I. - An asbestos plaintiff's quick disclosure of a replacement naval expert and the long time before trial warrants allowing the expert's trial testimony, a Rhode Island judge held Jan. 15 (Rosie K. Sweredoski, et al. v. Alfa Laval Inc., et al., No. 2011-1544, R.I. Super., Providence...