HIGHLIGHTS:

  • Manufacturers of products that contained chrysotile asbestos won a major victory in Crane Co. v. DeLisle in September, when Florida's Fourth District Court of Appeal reversed a verdict entered against a gasket manufacturer on grounds that the trial court had abused its discretion by admitting an expert's testimony.
  • The appellate court ordered that a verdict be directed for the defendant, where the only proof of causation was expert testimony that was not supported by scientific data and therefore should not have been admitted.
  • An "expert opinion is inadmissible when the only connection between the conclusion and the existing data is the expert's own assertions."
  • The appellate court's detailed opinion confirmed the scrutiny that judges must apply before admitting expert testimony, and it largely discredited opinions that exposure to chrysotile causes disease in humans.

Manufacturers of products that contained chrysotile asbestos won a major victory in Crane Co. v. DeLisle on Sept. 14, 2016, when Florida's Fourth District Court of Appeal (Fourth DCA) reversed a verdict entered against a gasket manufacturer on grounds that the trial court had abused its discretion by admitting the testimony of Dr. James Dahlgren. The appellate court's detailed opinion not only confirmed the scrutiny that judges must apply before admitting expert testimony but largely discredited opinions that exposure to chrysotile causes disease in humans.

In Crane Co. v. DeLisle, plaintiff Richard DeLisle sued Crane Co., as well as the successors to cigarette maker R.J. Reynolds, for causing him to contract mesothelioma through products they manufactured that contained asbestos. Crane had manufactured gaskets containing chrysotile asbestos that DeLisle claims he handled while working for a paper company from 1962 to 1966, whereas R.J. Reynolds made Kent cigarettes, which had filters containing crocidolite asbestos when he smoked them from 1952 through 1956. Chrysotile asbestos is widely considered throughout the scientific community to not cause diseases like mesothelioma that may be caused by other forms of asbestos.

At trial, to link his mesothelioma to the chrysotile asbestos found in Crane's gaskets, DeLisle presented the opinion of Dahlgren that "every exposure" to any kind of asbestos above background level would be a substantial contributing cause of mesothelioma. The trial court admitted Dahlgren's testimony over Crane's objection, and later denied Crane's motion for directed verdict. The jury then awarded DeLisle $8 million in damages and apportioned Crane as 16 percent at fault. On appeal, the defendants challenged the trial court's admission of each expert.

Appellate Decision

In determining that the trial court had "abused its discretion" by admitting Dahlgren's testimony, the Fourth DCA affirmed a trial court's duty under Daubert to look beyond an expert's credentials and scrutinize the data and methodology upon which he relies: "Although Dahlgren may be an expert in the field of occupational medicine and evaluation of mesothelioma, the record does not in any way support a finding that his opinions were supported by sufficient data or based upon reliable principles and methods under a proper Daubert analysis."

Critically, Dahlgren could not identify any study or scientific data demonstrating an association between chrysotile asbestos and disease in humans. Instead, he pointed only to "mixed" studies, which examined exposure to chrysotile and other more potent forms of asbestos. Said the court: "[E]ven if the methodology was appropriate, it was not supported by any data." Furthermore, Dahlgren's "opinion that every asbestos exposure level above background level is a substantially contributing factor has been repeatedly rejected by courts as insufficiently supported by data or testing to satisfy Daubert."

An "expert opinion is inadmissible when the only connection between the conclusion and the existing data is the expert's own assertions," the Fourth DCA said in its decision, adding that courts must "affirmatively prevent imprecise, untested scientific opinion from being admitted." The decision also said, "Dr. Dahlgren's testimony was more of the nature of ipse dixit, i.e. that it should be reliable merely because he is an expert. This is insufficient to satisfy Daubert."

Because DeLisle furnished no proof that exposure to chrysotile causes mesothelioma other than Dahlgren's inadmissible opinion, the Fourth DCA reversed the denial of Crane's motion for directed verdict and ordered that a verdict be entered in Crane's favor. The court also held that the trial court improperly admitted the testimony of Dr. James Crapo and James Rasmussen related to crocidolite asbestos, and it ordered a new trial for R.J. Reynolds.

Crane is a victory for manufacturers sued in Florida for alleged defective products based upon unreliable scientific theories of causation. Crane demonstrates that trial judges applying Daubert must do more than merely wield a rubber stamp. Professional expert witnesses cannot merely cite a laundry list of studies and articles in their reports and then opine generally that the products at issue caused the plaintiffs' diseases; they must explain which studies support their opinions and why, regardless of their credentials or how many times their testimony has been admitted in the past.

Crane is also particularly helpful for manufacturers of products containing chrysotile asbestos. Crane largely discredits the notion that chrysotile causes diseases in humans, and it laid out a blueprint for attacking the testimony of the handful of plaintiffs' experts who offer such opinions. Furthermore, in ordering a new trial against R.J. Reynolds, the Fourth DCA noted "that the $8 million award was substantially higher than any previous award for a victim of mesothelioma and asbestosis."

It also suggested that "where product use is contested, as it was in this case, a targeted instruction to the jury to determine this issue first would be appropriate." Product use is routinely contested in asbestos cases, where such use is alleged to have occurred decades before trial and proof that the plaintiff used specific products that contained asbestos (as opposed to similar products that did not contain asbestos) is often unreliable.