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Arbogast v. A.W. Chesterton Co.

United States District Court, D. Maryland

May 18, 2016

CHARLES LEMUEL ARBOGAST, JR., et al., Plaintiffs
v.
A.W. CHESTERTON CO. et al., Defendants

          MEMORANDUM

          James K. Bredar United States District Judge

         Pending 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.

         I. Background

         Plaintiffs, 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.

         GE has 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.

         Further, 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 follow.

         II. Analysis

         A. Expert Disclosures

         1. Timeliness

         Taking 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 Shipyard.[1]

         Dr. 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 with him:

Q Okay. Now, the [General Electric] turbo generators[2] in a Merchant Marine vessel of that era, do you have an opinion as to whether they were insulated with asbestos?
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 asbestos insulated.
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.
A Yes.

(Id. 107:2-108:20.)

         Federal 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 ...

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