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Experts Excluded In Asbestos Case, After Defendants DaimlerChrysler And Volkswagen Win Bid For Frye Hearing

Mealey Publications
Aug. 30, 2006

PITTSBURGH — Two plaintiffs’ experts in asbestos friction products litigation did not rely on generally accepted methods in concluding that every exposure to asbestos products is a proximate cause of asbestos-related disease, a judge said Aug. 17 in excluding the testimony (Re: Toxic Substances Cases>AD 03-319, Pa. Comm. Pls., Allegheny Co.).
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Defendants DaimlerChrysler Corp. and Volkswagen of America filed a motion for a Frye hearing. Allegheny County Common Pleas Judge Robert J. Colville ordered a handful of representative cases to be selected for purposes of the hearing. Drs. David Laman and John Maddox submitted non-case-specific expert reports.

Following an extensive Frye hearing in October and after reviewing voluminous scientific literature and legal authorities, Judge Colville concluded that the experts’ testimony was not based on a verified, tested or reviewed methodology and was instead the product of their “best estimate,” “gut instinct” or “educated guess.” He found that the experts relied largely on case reports. Such reliance alone, without support of some other methodology short of empirical verification, does not support the experts’ conclusions, the judge said.

Laman and Maddox did not rely on any actual quantity or quality of exposure suffered by any specific plaintiff, the judge noted. Dose response curves have been generated for high-exposure cases. Judge Colville said Maddox and Laman had to extrapolate down from the high-exposure dose curve to arrive at their conclusion that even exposure to small amounts can cause disease. The judge found that this methodology was not generally accepted.

The judge reiterated that Pennsylvania law requires actual causation and injury. It is insufficient to simply show increased risk of injury.

Copyright 2006, LexisNexis, Division of Reed Elsevier Inc. All rights reserved.

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