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