United States District Court, D. Maryland
K. Bredar United States District Judge
before the Court in this multidefendant asbestos
personal-injury case is General Electric Company’s
(“GE”) motion to exclude certain opinions and
testimony of Dr. Robert Leonard Vance, who is offered by
Plaintiffs as an expert on the subject of exposure to
asbestos. (ECF No. 385.) The motion has been briefed (ECF
Nos. 416 and 419), and no hearing is required, Local Rule
105.6 (D. Md. 2014). The motion will be granted. Also pending
before the Court is GE’s motion for summary judgment
(ECF No. 465), which has been opposed by Plaintiffs (ECF No.
497) and for which GE has filed its reply (ECF No. 510). No
hearing is necessary, and the motion will be granted.
who are husband and wife Charles Lemuel Arbogast, Jr., and
Barbara Arbogast, sued twenty-seven defendants-of whom
fourteen remain in the case-and alleged they, as
manufacturers and/or distributors of various products, caused
Charles Arbogast (“Arbogast”) to be exposed to
asbestos, which led to his diagnosis of mesothelioma.
(Compl., ECF No. 2.) Following an earlier ruling, the
complaint now contains three counts, including Count I -
strict liability, Count II - negligence, and Count IV - loss
of consortium. (See Ord., May 5, 2016, ECF No. 515.)
Plaintiffs demand compensatory damages in excess of $75, 000.
Every allegation in the complaint is worded to apply to all
of the Defendants and any of their products, operations, or
processes (simply referred to as “product”); the
allegations are not specific to any individual Defendant or
to any specific product. Whether a particular
Defendant’s product or products contained asbestos and
caused Arbogast to be exposed to asbestos is not detailed in
the complaint; thus, in conjunction with any factual
evidence, Dr. Vance’s expert opinion is pivotal in the
ultimate determination of whether a specific Defendant is
responsible for exposing Arbogast to asbestos.
advanced two arguments to exclude Dr. Vance’s opinions
regarding asbestos exposure caused by GE wire and GE marine
turbines: First, the opinions are inadmissible under Federal
Rule of Evidence 702; and second, with respect to Dr.
Vance’s opinion regarding asbestos exposure from
GE’s marine turbines, his opinion was not included in
his Rule 26 disclosures and should be excluded pursuant to
Federal Rule of Civil Procedure 37. A careful review of the
governing authorities and the materials in the record lead
this Court to conclude GE’s arguments are meritorious.
the Court has considered GE’s motion for summary
judgment in conjunction with the motion in limine
and has found it, too, has merit. The Court’s reasons
the argument as to timeliness first, the Court notes that the
scheduling order in this case, entered on February 24, 2015,
set, inter alia, July 31, 2015, as the deadline for
Plaintiffs to produce their expert disclosures pursuant to
Federal Rule of Civil Procedure 26(a); September 30, 2015, as
the deadline for Plaintiffs to supplement their expert
disclosures “with later acquired information” and
for depositions of Plaintiffs’ experts to be completed;
November 20, 2015, for Defendants to provide their Rule
26(a)(2) disclosures; and January 29, 2016, as the deadline
for filing dispositive motions. (ECF No. 89.) On July 30,
2015, Plaintiffs supplied to Defendants the written opinion
of R. Leonard Vance, Ph.D., J.D., PE, CIH, Adjunct Associate
Professor in Virginia Commonwealth University’s
Department of Mechanical and Nuclear Engineering. In relation
to GE, Dr. Vance noted that Arbogast had said he worked with
GE generators at Sparrows Point Shipyard and that he worked
with GE asbestos braided wiring. “He advised me that
this wiring produced visible dust when he worked with it and
I hold the opinion that Mr. Arbogast was exposed to asbestos
dust emanating from GE braided wiring.” (Vance Op. 5,
Def. GE’s Mot. Ex. C.) However, Dr. Vance’s
opinion never mentioned GE marine turbines, which Arbogast
presumably encountered at Sparrows Point
Vance’s deposition was taken on September 25, 2015, but
since it did not conclude on that date, it was carried over
to October 22, 2015. (Def. GE’s Mot. Ex. D & E.) On
the second day of testimony, Dr. Vance made clear in
cross-examination that, as far as GE was concerned, the only
product about which he was offering his expert opinion in
connection with asbestos exposure was GE wiring. (Vance Dep.
Oct. 22, 2015, 91:13-16.) After Defendants’
cross-examination of Dr. Vance was concluded,
Plaintiffs’ counsel engaged in the following exchange
Q Okay. Now, the [General Electric] turbo
generators in a Merchant Marine vessel of that era,
do you have an opinion as to whether they were insulated with
MR. NADOLINK: Objection. Beyond the scope of the report, and
also outside the witness’ expertise.
A I do have an opinion, and my opinion is that they were
Q All right. And if - Did you recall testimony regarding Mr.
Arbogast running cables and wires to those generators?
A I recall that testimony.
MR. NADOLINK: Objection. Beyond the scope of the report.
Beyond the scope of this witness’ expertise.
Q Do you have an opinion as to whether Mr. Arbogast would
have been presented a risk of exposure to respirable asbestos
by working in the engine room near turbo generators
manufactured by GE?
MR. NADOLINK: Same objection.
A I do have an opinion, and my opinion is that he would have
been at excess risk as a result of such an exposure.
Q Are those exposures and those type exposures recognized in
the industrial hygiene literature?
MR. NADOLINK: Same objections.
A Yes, they are.
Q And are those exposures of a type discussed in the
industrial hygiene literature that requires either
respiratory protection or a warning sufficient for the
employee to avoid exposure?
MR. NADOLINK: Same objections.
Rule of Civil Procedure 26 sets forth specific requirements
as to expert disclosures. Not only must the identity of any
expert witness be disclosed, but also the Rule requires that
[u]nless otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report-prepared
and signed by the witness-if the witness is one retained or
specially employed to provide expert testimony in the case .
. . .
Fed. R. Civ. P. 26(a)(2)(B). Pertinent to the present
discussion, Rule 26(a)(2)(B)(i) requires “a
complete statement of all opinions the witness will
express and the basis and reasons for them.” (Emphasis
added.) Further, Rule 26 imposes a specific time for a
party’s expert disclosures if a scheduling order is
entered: “A party must make these disclosures at the
times and in the sequence that the court orders.”
Fed.R.Civ.P. 26(a)(2)(D). In addition,
A party who has made a disclosure under Rule 26(a)-or who has
responded to an interrogatory, request for production, or
request for admission-must supplement or correct its
disclosure or response: (A) in a timely manner if the party
learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or
corrective information has not ...