Florida Appeals Court Finds Lower Court Erred in Allowing Some Expert Testimony

Appeals court reviewed many aspects of expert witness testimony that was allowed by the lower court.  The appeals court opined that the lower court erred when it allowed some experts to testify.

Facts:  This case (Crane Co. v. Delisle – Florida District Court of Appeal – Fourth District – September 14th, 2016) is an appeal from a jury verdict in which the appellants’ products were were found to contain asbestos and were contributing causes to appellee’s (DeLisle) mesothelioma.  Crane Co and R.J. Reynolds Tobacco Co argue that the lower court erred when it allowed the causation testimony from numerous experts.  DeLisle hired 4 experts to assist in proving causation:  Dr. James Dahlgren (Environmental Toxicology Expert Witness), James Millette (Occupational/Environmental Health Expert Witness), James Crapo (Pulmonary Medicine Expert Witness), and James Rasmuson (Industrial Hygiene & Mold Expert Witness).

After trail, the court entered a final judgment awarded DeLisle $8 million in past and future non-economic compensatory damages.   R.J. Reynolds and Crane now appeals the admissibility of the expert witness testimony.

Discussion: Dr. Dahlgren is a medical doctor specializing in occupational and environmental medicine, with a subspecialty in toxicology.  He opined that exposure to low levels of chrysotile asbestos from products manufactured by Crane was a substantial cause of DeLisle’s mesothelioma.  He stated that he used the Bradford Hill criteria, which is used in determining causation.  The criteria include strength, consistency, specificity, and other factors.  Dr. Dahlgren opined that, upon his review of the literature, both chrysotile and crocidolite asbestos can cause mesothelioma.  The trail court accepted Dr. Dahlgren as an expert and opined that his opinions were supported by sufficient data.

This present court disagreed, finding that the record does not a finding that his opinions were supported by sufficient data or based on reliable methods under Daubert.  In addition, he he did not provide any studies or data to show the association between mesothelioma and chrysotile asbestos at low levels.  In addition, the court finds that his opinion is not supported by any studies, and the lower court abused its discretion in admitting his testimony.

Dr. Millette discussed his background in microscopic analysis and particle identification and his publication of 60 articles on asbestos in peer reviewed journals.  He tested cigarettes and their filters for glass fibers.  Dr. Millette admitted that there is no standard methodology for testing asbestos in cigarette smoke, but that his testing methodology is generally accepted in the scientific community.  The trial court opined that Dr. Millette was qualified to provide testimony and that it was based on reliable principles and methods.  The appeals court agreed and opined that the trial court did not abuse its discretion when it held Dr. Millette’s testimony admissible.

Dr. Crapo opined that based on the medical literature on the subject, crocidolite and amosite asbestos are very potent, but did not think that exposure to chrysotile to be a cause of mesothelioma, unless it was ingested in high dosages.  He opined that DeLisle’s smoking of Kent Micronite cigarettes was a substantial contributing cause for his mesothelioma.  The lower court allowed his testimony, but the appeals court ruled that his testimony did not demonstrate the reliability of his opinion, nor was it helpful.

Dr. Rasmuson opined that DeLisle’s risk for mesothelioma was increased even by low-level exposure to crocidolite or amosite asbestos.  He based his opinions on three peer-reviewed case studies.  He also also stated that smoking Kent cigarettes would provide a significant exposure to crocidolite asbestos and that he relied on Dr. Longo’s studies to come to his conclusion.  The lower court allowed his testimony, but the appeals court concluded that the trial court erred when it allowed the second part of his testimony.

Conclusion:  The court concluded that the lower should not have allowed many aspects of the experts’ testimony.