Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Asbestos Products Liability Litigation

November 15, 2010

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI)
DIANNA K. LARSON, ET AL., PLAINTIFFS
v.
BONDEX INTERNATIONAL, ET AL., DEFENDANTS



The opinion of the court was delivered by: Eduardo C. Robreno, J.

Transferred from the Central District of Utah

Consolidated Under

MDL DOCKET NO. 875

MEMORANDUM

Before the Court is Defendant Georgia Pacific, LLC's Objections to Magistrate Judge Angell's Memorandum Opinion regarding Defendant's Motion to Exclude Plaintiffs' Experts' Testimony. (doc. no. 75.) Also before the Court is Plaintiffs' Objections to Magistrate Judge Angell's Memorandum Opinion regarding Plaintiffs' Motion in Limine. (doc. no. 76.) Judge Angell denied the parties' motions in limine on the grounds that all experts presented in the instant case meet the requisite standard of qualification, reliability, and fit under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

I. Background

Plaintiff Dianna Larson was diagnosed with mesothelioma in 2006. (Mem. Op., doc. no. 73, at 1.) Plaintiffs allege that the mesothelioma is the result of exposure to asbestos in joint compound products which Dianna Larson used in the 1970s when she and her first husband built two homes in Utah. (Id.) Named Defendants are alleged to have manufactured, sold or distributed chrysotile-containing joint compound products. (Id.)

After an initial voluntary dismissal of the action, the case was re-filed in the Third Judicial District Court, Salt Lake County, Utah, and removed to the United States District Court for the District of Utah in 2008. (Id., at 1 n.1.) The case was transferred to the Eastern District of Pennsylvania as part of MDL 875 In Re: Asbestos in June 2008. (Id.)

Dianna Larson alleges that she was exposed to Defendant's asbestos-containing joint compound products during the construction of two homes, which she and her first husband conducted with virtually no outside assistance. (Id. at 2.) Dianna Larson alleges that she was exposed when she sanded down Defendant's asbestos-containing products, used asbestos-containing sheetrock for the walls and ceilings, cleaned up the sites where Defendant's products were used, and cleaned the clothes worn by her and her husband, which contained asbestos dust. (Id. at 2.)

Both Plaintiffs and Defendants have filed motions to exclude each other's expert testimony regarding the cause of Dianna Larson's injuries under Federal Rule of Evidence 702 and 703.

II. Standard of Review

Federal Rule of Evidence 702 sets forth the standard for admitting expert testimony. The Rule requires that an expert witness must be "qualified as an expert by knowledge, skill, experience, training, or education" may testify as to his or her opinion if "(1) the testimony is based upon sufficient facts or data (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702. The Third Circuit has explained that "Rule 702 embodies a trilogy of restrictions on expert testimony: qualification, reliability, and fit." Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003)(citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).

The "reliability" of the underlying principles and methods is the basis for each parties' objection to expert testimony in the instant case. (Mem. Op., doc. no. 73, at 3.) To determine the reliability of a scientific principle or method, a court may examine numerous factors, including whether the principle or method has been tested or is capable of being tested, whether the potential rate of error in the method can be ascertained, whether it has been subjected to peer review and publication, and whether it is generally accepted within the scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, at 593-94. The test for reliability is "flexible," and a court has "broad latitude" in how it chooses to determine liability. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). The approach to determining reliability of expert testimony is "tied to the facts" of a particular case, and highly dependent on the nature of the expert testimony presented. Id. at 148 (quoting United States v. Downing, 753 F.3d 1224, 1242 (3d Cir. 1985).

In reviewing objections to a magistrate judge's ruling on a non-dispositive matter, a district court will only reverse a magistrate judge's decision if it "is clearly erroneous or contrary to law." Fed. Rule. Civ. P. 72(a). A magistrate judge's ruling concerning the admissibility of expert testimony is non-dispositive discovery ruling, and is therefore subject to a clearly erroneous standard of review. See, e.g., U.S. v. Polishan, 336 F.3d 234, n.2 (3d Cir. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.