United States District Court, D. Maryland
K. BREDAR UNITED STATES DISTRICT JUDGE
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.
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.
Motion in Limine
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.
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.
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
(d) the expert has reliably applied the principles and
methods to the ...