to be admissible, testing must be “substantially similar” to the incident
How later courts described this case
- to be admissible, testing must be “substantially similar” to the incident
- to be substantially similar, a test must only “afford a fair comparison in respect to the particular issue to which the test is directed” (quoting Ill. Cent. Gulf R.R. Co. v. Ishee, Miss., 317 So.2d 923, 926 (Miss. 1975)
Written by the judges who cited it.
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
Before the Court is plaintiffs’ motion in limine to limit testimony by Dr. Brent
Finley pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).1 Defendant Hopeman Brothers, Inc. (“Hopeman”) opposes the motion.2
For the following reasons, the Court denies plaintiffs’ motion.
I. BACKGROUND
This is an asbestos exposure case. Plaintiffs allege that decedent Callen
Cortez contracted mesothelioma as a result of exposure to asbestos over the course
of his career,3 as well as take-home exposure resulting from his brothers’ work
1 R. Doc. 509.
2 R. Doc. 716.
3 R. Doc. 1-1 at 11-13 (Complaint ¶¶ 25-29).
when the family shared a home.4 Hopeman is sued as an alleged professional
vendor of asbestos-containing wallboard.5
In the present motion, plaintiffs seek to limit the testimony of Dr. Brent
Finley, an expert toxicologist, on the grounds that his opinion on whether asbestos
exposure from Hopeman’s wallboard was a substantial factor in bringing about
Cortez’s mesothelioma is unreliable under Daubert and therefore inadmissible.6
Specifically, plaintiffs assert that Finley’s opinion is inadmissible because he relied
on studies that were conducted utilizing vacuum systems while measuring the level
of asbestos released by sawing asbestos-containing boards, whereas Hopeman
assertedly did not use protective measures during the period of Callen Cortez’s
exposure.7 Hopeman opposes the motion and contends that the use of vacuums is
in issue, and Finley’s testimony should not be limited merely because he relies on
studies that did not exactly replicate the conditions of plaintiffs’ exposures.8
The Court considers the parties’ arguments below.
4 R. Doc. 149 at 1-2 (Second Amended Complaint ¶¶ 94-95).
5 R. Doc. 1-1 at 3-6 (Complaint ¶¶ 3, 8).
6 R. Doc. 509.
7 R. Doc. 509-1 at 2-4.
8 R. Doc. 716.
II. DISCUSSION
Plaintiffs’ claims rely on Callen Cortez’s workplace exposures to Hopeman’s
asbestos-containing wallboard, as well as take-home exposure through Daniel
Cortez’s work when the two lived in the family home.9 The parties dispute the
admissibility of Finley’s proposed expert testimony, which goes to the degree of the
asbestos exposures from Hopeman’s wallboard and therefore whether such expo
sures were a substantial factor in causing Cortez’s mesothelioma.10 Finley
estimated Cortez’s potential cumulative exposure from Hopeman’s wallboard to be
between 0.0005 f/cc-years to 0.0022 f/cc-years, which he asserts is well below
current exposure limits as well as the threshold exposure level for increased risk of
mesothelioma.11 Plaintiffs contend that Finley’s testimony should be excluded on
this issue because he relied on incomplete materials. Specifically, they assert that
Finley only relied on studies where vacuums were used, whereas Callen Cortez and
Daniel Cortez testified that no such preventative measures were used by the
Hopeman employees that cut wallboard in their vicinity. Plaintiffs contend that
Finley’s reliance on purportedly inapposite studies results in an underestimate of
Cortez’s actual exposure, which compromises the reliability and relevance of
Finley’s opinion.
9 R. Doc. 149 at 1-6 (Second Amended Complaint ¶¶ 94-101).
10 R. Docs. 509 & 716.
11 R. Doc. 716-1 at 37 (Finley Report).
In response, Hopeman represents that it will present fact witnesses at trial
who will testify that dust-collecting systems were used during the relevant period,
in direct contradiction of plaintiffs’ evidence. Because defendants may provide
evidence at trial that Hopeman used such measures, plaintiffs’ argument about the
nonuse of vacuums does not require exclusion of Finley’s opinion. Further, Finley
also relied on studies that did not use dust-collecting measures. For example,
Finley cites the June 1999 Longo study in estimating the length of the asbestos
fibers generated by sawing Hopeman’s wallboard.12
Further, even if Finley relies on studies conducted under somewhat different
conditions than Cortez’s exposures, this does not, by itself, demand exclusion of
Finley’s opinion. A study need not be conducted under the exact conditions as the
facts of the case to be admissible. Rather, the study must afford a fair comparison.
See Williams v. Briggs Co., 62 F.3d 703, 707 (5th Cir. 1995) (to be admissible,
testing must be “substantially similar” to the incident); Barnes v. Gen. Motors
Corp., 547 F.2d 275, 277 (5th Cir. 1977) (to be substantially similar, a test must
only “afford a fair comparison in respect to the particular issue to which the test is
directed” (quoting Ill. Cent. Gulf R.R. Co. v. Ishee, Miss., 317 So.2d 923, 926 (Miss.
1975)). Plaintiffs point to Finley’s deposition testimony for the proposition that
the presence vel non of vacuum systems is critical in determining whether a study
12 Id. at 40 (Finley Report).
affords a fair comparison; but what Finley actually stated was that “if you assume
the vacuums are effective, then [the] values [derived from studies that do not
utilize vacuum systems] would be underestimating.”13 In the cited testimony,
Finley did not endorse the effectiveness of the vacuums, and defendant notes that
Finley assumed the worst-case scenario about Cortez’s exposures to compensate
for the limitations of the studies that he relied on.14 Therefore, the Court is
unpersuaded by plaintiffs’ contentions that the studies Finley relies on are so
dissimilar from Cortez’s exposure that the opinion must be excluded.
Lastly, plaintiffs’ citation to Boudreaux v. Bollinger Shipyards is
unpersuasive. That case dealt with an expert who was excluded because he relied
on incomplete medical records and exposure history while opining on the
plaintiff’s condition. Boudreaux v. Bollinger Shipyards, 197 So. 3d 761, 770 (La.
App. 4 Cir. 2016). Boudreaux is inapposite here, where the issue is the similarity
of the studies Finley relies on to actual exposure conditions.
Plaintiffs may challenge Finley’s conclusions or interpretation of the facts
through cross-examination. Primrose Operation Co. v. Nat’l Am. Ins. Co., 382
F.3d 546, 562 (5th Cir.2004) (noting that “[a]s a general rule, questions relating to
the bases and sources of an expert’s opinion affect the weight to be assigned that
13 R. Doc. 509-8 at 5 (Deposition of Brent Finley at 131:2-11).
14 R. Doc. 716-1 at 37 (Finley Report).
opinion rather than its admissibility and should be left for the jury’s
consideration.”) (quoting United States v. 14.38 Acres of Land, More or Less Sit.
in Leflore, Cnty., Miss., 80 F.3d 1074, 1077 (5th Cir. 2004)). As the Supreme Court
noted in Daubert, “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (citing Rock v. Arkansas,
483 U.S. 44, 61 (1987)). Accordingly, the Court denies plaintiffs’ motion.
Ill. CONCLUSION
For the foregoing reasons, the Court DENIES plaintiffs’ motion in limine.
New Orleans, Louisiana, this _12th day of October, 2022.
Sern Varner
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE