Court of Appeal of Louisiana, Fourth Circuit
In this action, plaintiff Climmie Craft filed suit in this matter asserting that she contracted asbestos-related lung cancer as a consequence of her take-home exposure to asbestos while laundering the asbestos-contaminated clothing of her husband, Jerry Craft. Mrs. Craft alleges that her husband was exposed to asbestos while employed by various stevedoring companies, including the defendants. Mr. Craft died from asbestos-related mesothelioma. To demonstrate that her household exposure to asbestos and her husband’s workplace exposure to asbestos were substantial and significantly above background levels, Mrs. Craft offered the expert opinion of Mr. Garza, a Certified Industrial Hygienist. Mr. Garza has rendered the opinion that Mr. Craft suffered significant occupational exposures to asbestos while employed by the defendants and that Mrs. Craft suffered significant household exposure to asbestos while laundering her husband’s work clothing. Mr. Garza’s report, in particular, indicated that he “provided estimated exposure rates to both Mr. Craft and Mrs. Craft based on the exposure evidence in this case and the relevant epidemiological studies, and based on this, opined to a reasonable degree of scientific certainty that ‘Ms. Climmie Craft had exposures above background that increased her risk for [asbestos-related] disease.'” The defendants ultimately filed Daubert motions in limine seeking to exclude and/or limit the testimony of Mr. Garza, arguing therein that Mr. Garza’s opinion is based on insufficient facts and data. The trial court granted the defendants’ Daubert motion, in part, precluding Mr. Garza “from offering testimony regarding the asbestos exposures by Jerry Craft and/or Climmie Craft. The Court will allow Mr. Garza to testify about general industrial opinions, only.” The plaintiff thereafter sought emergency supervisory review of the trial court’s ruling from August 22, 2024.
“Under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by the Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1122 (La. 1993), the trial court is required to perform a ‘gatekeeping’ function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'” Allen v. Eagle Inc., 2022-0386, 0387, p. 9 (La. App. 4 Cir. 8/10/22), 346 So.3d 808, 814-15, writ denied, 349 So.3d 998 (quoting Versluis v. Gulf Coast Transit Co., 2008-0729, p. 5 (La. App. 4 Cir. 7/29/09), 17 So.3d 459, 463. La. C.E. art. 702(A) addresses the standard for admissibility of expert testimony and 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 the proponent demonstrates to the court that it is more likely than not that: (1) 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; (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
This Court in Allen, 2022-0386, p. 9, 346 So.3d at 815, recognized that the character of the evidence upon which an expert bases his opinion affects only the weight to be afforded to the expert’s testimony and does not make his opinion evidence inadmissible pursuant to Daubert. This Court stated: “The [Louisiana] Supreme Court, in Certain Underwriters at Lloyd’s London v. United States Steel Corp., 20[19]-1730, p. 3 (La. 1/28/20), 288 So.3d 120, 122, (quoting Lafayette City-Parish Consol. Gov’t v. Person, [20]12-0307, p. 8 (La. 10/16/12), 100 So.3d 293, 298), found that an “expert may provide testimony based on information obtained from others, and the character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the expert’s conclusion.” See also MSOF Corp. v. Exxon Corp., [20]04-0988, p. 16 (La. App. 1 Cir. 12/22/05), 934 So.2d 708, 720 (wherein the First Circuit held that “the character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the expert’s conclusion … and may serve as a basis for attack by defendants on cross-examination at trial, but it does not make his opinion evidence inadmissible under Daubert.”).
On appeal, Mrs. Craft argued the trial court erred in prohibiting Mr. Garza from testifying that her husband’s exposures to asbestos while employed by each defendant were significant and above background, and that her “take-home” asbestos exposures from her husband’s employment by each defendant were significant and above background. Mrs. Craft claims that Mr. Garza has sufficiently testified as to the frequency Mr. Craft was exposed to asbestos because of the work he performed for each defendant. Based on the record presented, the Appellate Court found that the evidence upon which Mr. Garza based his opinion affects only the weight afforded Mr. Garza’s conclusions. For instance, Mr. Garza stated in his report that his review of case specific information included: “Deposition of Climmie Craft, dated December 8, 2023; Deposition of Jerry Craft, dated November 10, 2006; Deposition of Jerry Craft, dated January 23, 2017; Discovery Deposition of Jerry Craft, dated July 19, 2017; and/or other case-specific information.” The Appellate Court therefore found Mr. Garza’s evidence and testimony should be weighed by the jury. Accordingly, Mrs. Craft’s writ application was granted. Further, the Appellate Court reversed the trial’s rulings, which found that Mr. Garza would be limited to offering only general industrial hygiene opinions at trial. The matter was ultimately remanded to the trial court for further proceedings.
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