Products Liability Law Reporter

A federal district court held that an industrial hygienist may not testify that a supplier or distributor that places its name on a box containing insulation should be considered a manufacturer of that product.

Callen Cortez was exposed to asbestos during his career and was later diagnosed as having mesothelioma. He sued various defendants, including former employers, manufacturers, and insurance companies, alleging products liability, negligence, and intentional tort claims. Cortez, and, after his death, his surviving spouse and children, claimed that Eagle, Inc., and McCarty Corp. were former suppliers and distributors of asbestos-containing products to which Cortez had been exposed. The plaintiffs asserted that Eagle and McCarty would package asbestos-containing products from other distributors and manufacturers and hold out the products as their own. As a result, the plaintiffs argued, Eagle and McCarty were liable as manufacturers under Louisiana law.

The defense, which removed the case to federal court, moved to limit the testimony of the plaintiffs’ expert industrial hygienist, Gerard Baril, arguing he should not make a legal determination as to the definition of a manufacturer under Louisiana law.

Granting the motion in part, the court found that an expert qualified by knowledge, skill, experience, training, or education may testify if his or her specialized knowledge will help the trier of fact understand the evidence or determine a fact at issue. Citing case law, the court added that a court may refuse to allow an expert witness to testify where the witness is not qualified to testify in a particular field or on a given subject. Here, the court said, Baril is qualified to offer testimony that as an industrial hygienist, he would seek information regarding a product’s hazardous nature by considering the name on the product. However, Baril may not testify that a supplier or distributor that places its name on a box containing insulation should be considered a manufacturer of that product simply because they hold the product out to the public as their own. The court held that whether a supplier is a professional vendor is a legal question and not a proper subject for the testimony of an expert industrial hygienist.

Consequently, the court granted the defense motion to the extent that it seeks to prohibit Baril from testifying regarding whether a supplier that places its name on a box of insulation should be considered a legal insulation manufacturer.

Citation: Cortez v. Lamorak Ins. Co., 2022 WL 2829006 (E.D. La. July 20, 2022).

Comment: In Katechis v. Allied Bldg. Prods. Corp., 2022 WL 2101606 (N.Y. Sup. Ct. New York Cty. June 15, 2022), Anastasios Katechis was allegedly exposed to asbestos while working as a painter between 1967 and 1971 and handling pre-mixed joint compound purchased from Dykes Lumbar Co. After Katechis’s death from pleural malignant mesothelioma, his estate sued Dykes Lumbar Co. The defense moved for summary judgment, arguing lack of proximate cause. The defense offered the opinion of Neva Jacobs, an industrial hygiene expert who opined that Katechis was not exposed to a sufficient amount of asbestos to increase his risk of developing mesothelioma. The plaintiff countered that the defense had failed to meet its prima facie burden in that it relied on the affidavit of an industrial hygienist not qualified to testify on medical causation. The trial court found that the defense had not offered affidavits with sufficient qualifications to tender medical evidence establishing a lack of proximate cause. The court said that in moving for summary judgment, the defendant had the burden to unequivocally establish that its product could not have contributed to the causation of the plaintiff’s injury. In contrast, the court said, the plaintiff had laid a foundation as to causation such that a genuine issue of triable fact had been established. Thus, the court concluded that summary judgment was not warranted. AAJ member Joseph Belluck, New York City, represented the plaintiff.