Opinion

Cortez v. Lamorak Insurance Company

Court
District Court, E.D. Louisiana
Filed
Aug 23, 2022
Cited by
0 cases
Authority
More cited than 22.3%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CALLEN J. CORTEZ, ET AL. CIVIL ACTION

VERSUS NO. 20-2389

LAMORAK INSURANCE COMPANY, SECTION “R” (1)

ET AL.

ORDER AND REASONS

Hopeman Brothers, Inc. and Liberty Mutual Insurance Co. (together,

“Hopeman”) move to strike the testimony of Gerald Baril, plaintiff’s expert

industrial hygienist, under Federal Rule of Evidence (“FRE”) 702, 703, and

403, as well as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993).1 For the reasons that follow, the Court denies the motion.

I. BACKGROUND

Callen Cortez, now deceased, sued Hopeman, among others, for

asbestos exposures causing him to develop mesothelioma.2 Plaintiffs’

industrial hygienist, Gerald Baril, opined that plaintiff suffered

paraoccupational, direct, and bystander exposure to asbestos products from

Hopeman that significantly contributed to his risk of developing

1 R. Doc. 491.

2 R. Doc. 1-1 at 1-3, 11-13 (Complaint ¶¶ 1-2, 25-29).

mesothelioma.3 Baril relies on testimony from Cortez’s brothers, Daniel and

Mitchell Cortez, that they worked around Hopeman’s employees while the

employees cut asbestos wallboard at Avondale Shipyards, as well as

testimony from other Avondale employees that Hopeman’s workers installed

wallboard in living areas and galleys of ships at Avondale.4 The testimony

was that when Hopeman cut wallboards around the Cortez brothers,

Hopeman exposed them to asbestos dust.5 Baril also relied on Callen

Cortez’s testimony about his work around Hopeman’s employees at

Avondale, including that he worked next to Hopeman’s employees while they

cut asbestos wallboard in ships’ galleys and living quarters.6 Baril used six

studies to determine the level of asbestos exposure Cortez experienced from

Hopeman’s cutting of wallboard.7 The cited exposure levels ranged from 1.84

f/cc up to 112.2 f/cc. Baril then compared Cortez’s exposures to current and

historical occupational health standards for asbestos and found them to be

well in excess of these standards and to present a significant risk of

mesothelioma.8

3 See generally R. Doc. 491-7 (Baril Report).

4 Id. at 17-44.

5 Id. at 23-24, 27.

6 Id. at 33.

7 Id. at 43.

8 Id. at 44.

II. DISCUSSION

Hopeman seeks to exclude Baril’s testimony as unreliable and

unhelpful. See Fed. R. Evid. 702 (requiring expert testimony to be reliable

and helpful to the factfinder). Hopeman first contends that Baril did not

reliably determine asbestos exposure levels.9 This argument is without

merit. Baril’s methodology consisted of consulting scientific studies and

literature that calculated asbestos exposure levels from activities like those

identified by witnesses and comparing the resulting exposure levels to

occupational standards establishing permissible exposure limits to asbestos.

The law does not require plaintiffs to show the precise amount of a toxic

substance to which they were exposed. Curtis v. M&S Petroleum, Inc., 174

F.3d 661, 671 (5th Cir. 1999). In Curtis, supra, the Fifth Circuit upheld an

expert’s opinion that relied, inter alia, on testimony about the work practices

at the workplace at issue, including testimony that witnesses became soaked

in the relevant toxic material when they performed certain tasks. Id. This is

similar to the evidence Baril relied on here. Hopeman also contends that

Baril simply assumes that every exposure above background is harmful. But

Baril has not opined that exposures from Hopeman were harmful simply

9 R. Doc. 491-1 at 6.

because they were above background. Rather, he concluded that they

exceeded applicable safety standards. This argument is likewise without

merit.

Hopeman’s other argument, that Baril was unfamiliar with its

operations or materials, also does not warrant exclusion of Baril’s testimony.

Baril’s report discusses witness testimony that Hopeman’s wallboard was

made of Micarta and that Hopeman’s workers cut the boards with skil saws,

creating asbestos dust.10 Baril relies on studies that evaluated asbestos fiber

releases from cutting products with this material. Hopeman’s arguments do

not support a finding that Baril’s opinion lacks a factual basis. Rather, these

arguments are the proper subject of cross-examination.

Hopeman also argues that the Court should preclude plaintiffs from

using a videotape of the Longo/Hatfield Micarta study at trial. This

argument is moot, because plaintiffs stipulate that they will not attempt to

use the video at trial.

To the extent that Hopeman attacks the Longo/Hatfield study itself, its

arguments lack merit. For example, Hopeman argues that the study

simulated workers who stood still during exposures, while Cortez simply

walked by Hopeman’s workers in passing. But the record reflects that Callen

10 R. Doc. 491-7 at (Baril Report).

Cortez also testified that he worked next to Hopeman’s employees in ships’

living quarters and galleys while they cut the dust-generating wallboards.

Hopeman’s argument does not warrant exclusion of this study. Hopeman

also faults the Longo/Hatfield study because it uses a transmission electron

microscopy (“TEM”) method of measuring asbestos release, which Hopeman

contends produces exaggerated results. But the study also uses the phase-

contrast microscopy (“PCM”) method, which Hopeman does not criticize.

Baril relies only on the PCM test results in his report. For this reason, the

use of the TEM method by Longo/Hattfield is not a basis to exclude Baril’s

testimony about the study, although this topic may be explored on cross-

examination.

Ill. CONCLUSION

For the foregoing reasons, the Court DENIES Hopeman and Liberty

Mutual’s motion to exclude or limit Gerard Baril’s testimony.

New Orleans, Louisiana, this _23rd_ day of August, 2022.

Aowk Varter

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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