Jurisdiction: United States District Court for the Eastern District of Louisiana
This case involves claims of asbestos exposure. Plaintiff Robert Stephen Sentilles initiated this action asserting negligence and strict liability claims against several defendants. Mr. Sentilles specifically claimed having asbestos exposure due to, among other things, working at various Navy shipyards involving insulation, asbestos blankets, and other related products from the 1950s to the 1980s. Plaintiff further claimed that he was diagnosed with mesothelioma as a result of the asbestos exposure on October 27, 2020.
Defendants engaged Christopher P. Herfel, a marine engineer and former Navy officer, as an expert. Mr. Herfel rendered, in essence, two opinions: (1) – Mr. Herfel opined the government, as stated in its contracts and vessel specifications, required asbestos-containing materials to be used on its vessels, and defendant was required to act in “strict compliance” with that requirement considering federal inspectors regularly inspected defendant to ensure compliance; and (2) Mr. Herfel explained the government’s research on the health hazards posed by asbestos, which dates back to the 1940s, and concluded that a private-sector shipyard, such as the defendant(s), could not have had greater knowledge of those hazards than the federal government.
Plaintiff ultimately filed a motion in limine to exclude Mr. Herfel’s testimony and opinions from trial. Plaintiff initially argued Mr. Herfel is not qualified to render the opinions because he is not an industrial hygienist and does not have a degree in naval or maritime history or policy. Plaintiff also asserted that Mr. Herfel’s methodology was flawed because, among other things, Mr. Herfel did not review any documents or depositions related to the history of the shipyard at issue, particularly those pertaining to asbestos, and his references to OSHA and other safety standards are irrelevant. Lastly, plaintiff contended Mr. Herfel’s testimony is prejudicial because the jury may believe that he speaks for the governing considering he is a former Navy officer.
Defendants’ opposed Mr. Sentilles’ motion in limine. Defendants specifically argued that Mr. Herfel’s education, work experience, and research qualify him to render the opinions expressed above. Defendants, moreover, contended that Mr. Herfel is not being presented as an industrial hygienist or shipyard historian, and it is irrelevant that he does not possess a history degree. Defendants also asserted that Mr. Herfel’s testimony would be helpful to the jury because he uses his knowledge and experience to explain complex government records on shipbuilding specifications, policies, and procedures. Lastly, defendants argued that Mr. Herfel’s testimony is not prejudicial because plaintiff can test his opinions through cross-examination and countervailing testimony and other evidence.
A district court has discretion to admit or exclude expert testimony under the Federal Rules of Evidence. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997). In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the Supreme Court held that Rule 702 requires a district court to act as a gatekeeper to ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Rule 702 of the Federal Rules of Evidence specifically 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: (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’s opinion reflects a reliable application of the principles and methods to the facts of the case.
The reliability inquiry requires a court to assess whether the reasoning or methodology underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 592-93. In Daubert, the Supreme Court listed several nonexclusive factors for a court to consider in assessing reliability: (1) whether the theory has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) the general acceptance of the methodology in the scientific community. Id. at 593-95. However, a court’s evaluation is flexible because “[t]he factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (quotations omitted). In sum, the district court must ensure “that an expert, whether basing testimony upon professional studies or personal experiences, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152.
Next, the court must determine whether the expert’s reasoning or methodology “fits” the facts of the case and whether it will assist the trier of fact to understand the evidence, i.e., whether it is relevant. Daubert, 509 U.S. at 591. An expert’s testimony is not relevant and may be excluded if it is directed to an issue that is “well within the common sense understanding of jurors and requires no expert testimony.” Vogler v. Blackmore, 352 F.3d 150, 155 (5th Cir. 2003). Further, an expert cannot make “legal conclusions reserved for the court,” credit or discredit witness testimony, or “otherwise make factual determinations reserved for the trier of fact.” Highland Cap. Mgmt., L.P. v. Bank of Am., N.A., 574 F. App’x 486, 491 (5th Cir. 2014).
The court is also obligated to determine whether the expert is properly qualified. Generally, if there is some reasonable indication of qualifications, the district court may admit the expert’s testimony, and then the expert’s qualifications become an issue for the trier of fact. Rushing v. Kan. City S. Ry. Co., 185 F.3d 496, 507 (5th Cir. 1999), superseded in part by statute on other grounds as noted in Lester v. Wells Fargo Bank, N.A., 805 F. App’x 288, 291 (5th Cir. 2020). A witness qualified as an expert is not strictly confined to his area of practice but may testify regarding related applications; a lack of specialization goes to the weight, not the admissibility of the opinion. Cedar Lodge
Plantation, L.L.C. v. CSHV Fairway View I, L.L.C., 753 F. App’x 191, 195-96 (5th Cir. 2018).
The facts, data, and sources used in an expert’s opinion are generally considered by the jury in weighing the evidence, but “in some cases ‘the source upon which an expert’s opinion relies is of such little weight that the jury should not be permitted to receive that opinion.'” Jacked
Up, L.L.C. v. Sara Lee Corp., 807 F. App’x 344, 348 (5th Cir. 2020) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)). As the gatekeeper, a district judge must “extract evidence tainted by farce or fiction. Expert evidence based on a fictitious set of facts is just as unreliable as evidence based upon no research at all.” Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1331 (5th Cir. 1996). “Generally, the fact-finder is entitled to hear an expert’s testimony and decide whether the predicate facts on which the expert relied are accurate. At the same time, however, expert testimony that relies on completely unsubstantiated factual assertions is inadmissible.” Moore v. Int’l Paint, L.L.C., 547 F. App’x 513, 515 (5th Cir. 2013) (internal quotation marks, alterations, and citations omitted). Ultimately, the expert must “‘bring to the jury more than the lawyers can offer in argument.'” Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992) (quoting In re Air Crash Disaster at New Orleans, 795 F.2d 1230, 1233 (5th Cir. 1986)).
In light of the principles espoused above, the court held Mr. Herfel’s education, experience, and research qualify him to render the opinions expressed, and that those opinions are relevant and reliable, and will be helpful to a jury in understanding the issues in this case. Mr. Herfel was a marine engineer that worked in a shipyard and was in the Navy with two decades of experience researching the government’s shipbuilding practices, particularly those related to the use of asbestos. Mr. Herfel’s testimony would therefore provide context to defendants’ work on federal vessels and help the jury to understand the government’s requirement that asbestos-containing materials be used on its vessels, the government’s role in supervising the shipbuilding process, defendant(s)’ adherence to the relevant government directives, and the historic information the government had concerning the health hazards of asbestos.
These topics are beyond the knowledge and experience of an average juror. Accordingly, plaintiffs’ motion in limine was denied.
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