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Arbogast v. A.W. Chesterton Co.

United States District Court, D. Maryland

June 6, 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 are two motions by Defendant CBS Corporation of Delaware ("Westinghouse"): one, a motion in limine to exclude the report, opinions, and testimony of Plaintiffs’ expert as to asbestos exposure, R. Leonard Vance, Ph.D., J.D. PE, CIH (ECF No. 393), and, two, a motion for summary judgment as to all of Plaintiffs’ claims against it (ECF No. 442). The motions have been briefed (ECF Nos. 415, 423, 493, 511), and no hearing is necessary, Local Rule 105.6 (D. Md. 2014). The motions will be granted.

         I. Background

         As earlier noted in other opinions in this case, Plaintiffs Charles Lemuel Arbogast, Jr. ("Arbogast"), and Barbara Arbogast, sued a number of companies that allegedly manufactured and/or distributed products containing asbestos to which Arbogast was exposed, thereby causing his mesothelioma. Because the complaint is worded generically to apply to all Defendants and their various products, the merit of Plaintiffs’ claims depends upon the evidence against specific Defendants and their respective, specific products. Plaintiffs have offered Dr. Vance as an expert in matters involving industrial hygiene and asbestos exposures. Dr. Vance’s written opinion as to Westinghouse focused on two products: asbestos "socks" and Micarta. (Vance Op. 10, Def. Westinghouse Mot. Lim. Ex. A, ECF No. 393-3.) Plaintiffs now concede that Westinghouse has no liability for the asbestos "socks" (Pls.’ Opp’n 2, ECF No. 415); consequently, the admissibility of Dr. Vance’s opinion will be considered only as to Micarta.

         II. Analysis

         A. Motion in Limine

         Preliminarily, the Court excludes the "supplemental opinion" of Dr. Vance attached to Plaintiffs’ response in opposition to Westinghouse’s motion in limine (id. Ex. 9, ECF No. 415-10). Plaintiffs did not seek leave of court to make a supplemental disclosure so long after the deadline for doing so expired under the scheduling order (ECF No. 89), and they have offered no good cause to modify the scheduling order nunc pro tunc. See Fed. R. Civ. P. 16(b)(4) ("A schedule may be modified only for good cause and with the judge’s consent."). Hence, Dr. Vance’s opinion as to asbestos exposure emanating from Micarta will be analyzed only in relation to his original, timely disclosure.

         Westinghouse argues that Dr. Vance’s opinion as to Micarta "is grounded in neither sufficient facts nor data, is not the product of reliable principles and methods, and contains nothing that would assist the trier of fact." (Def. Westinghouse Mot. Lim. 1.) Having reviewed the record and the governing authorities, the Court concludes Westinghouse’s argument is meritorious.

         Federal Rule of Evidence 702 provides,

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the ...

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