Robertson v. Doug Ashy Building Materials, Inc.
168 So. 3d 556
La. Ct. App.2014Background
- Decedent Harris Robertson, a drywall finisher, was diagnosed with mesothelioma (2004) and died; plaintiffs (wife and children) sued multiple defendants, including Sherwin-Williams, asserting exposure to asbestos-containing joint compounds (e.g., Gold Bond) used in Robertson’s work.
- Plaintiffs relied principally on pathologist Dr. Eugene J. Mark to prove specific causation—that Robertson’s exposures to products sold by Sherwin-Williams substantially contributed to his mesothelioma.
- Earlier appeal (Robertson III) reversed a trial court order striking portions of Dr. Mark’s opinion and held the trial court failed to perform a proper Daubert analysis; remanded for further proceedings.
- On remand the trial court held a full Daubert hearing, then excluded Dr. Mark’s testimony that “each special exposure” was a substantial contributing factor and barred him from defining “special exposure,” while permitting other causation opinions.
- Sherwin-Williams then moved for summary judgment; the trial court granted it, relying on the Daubert limitations and concluding plaintiffs lacked an expert to establish medical significance of Sherwin-Williams’ products.
- On appeal the First Circuit reversed both the Daubert limitation and the summary judgment, finding the exclusion improperly implicated methodology (Daubert) rather than application/weight and that genuine issues of material fact remain on causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Mark’s causation testimony under Daubert/La. C.C.P. art. 1425(F) | Mark’s methodology (qualitative assessment using literature, exposure history, pathology) is reliable; “special exposure” is a descriptive term, not a novel methodology | “Special exposure” is circular, not used in scientific literature, and testimony that every exposure is causative is unreliable | Trial court abused discretion; exclusion targeted application/terminology, not methodology; reversed and Dr. Mark may testify without the Daubert-imposed limitation |
| Scope of Daubert inquiry on remand after Robertson III | No new Daubert hearing was required because this Court already found Mark’s opinion reliable on de novo review | A full hearing was proper to allow live testimony and further adversarial testing | Remand hearing did not justify limiting testimony; appellate court reversed the partial exclusion |
| Sufficiency of evidence to survive summary judgment on causation re: Sherwin‑Williams’ products | Plaintiffs’ evidence (brothers’ depositions, Mark’s affidavit stating Sherwin‑Williams supplied a substantial portion of asbestos-containing joint compound he used) raises genuine issues of material fact (qualitative causation) | After Daubert limits, plaintiffs lack an expert to show intensity/duration/dose from Sherwin‑Williams products and thus cannot prove specific causation | Sherwin‑Williams did not meet initial burden to show absence of medical-significance evidence; plaintiffs produced sufficient evidence to create genuine factual disputes; summary judgment reversed |
| Role of quantitative vs. qualitative exposure evidence in mesothelioma causation | Qualitative assessment (frequency, proximity, nature, duration) suffices; quantitative dose not required to prove specific causation in mesothelioma | Quantification (fiber/cc–years, fiber type potency) is needed to apportion contribution and prove causation | Court reiterates that qualitative proof may suffice; disputes about potency, dose, idiopathic cases are factual issues for jury, not Daubert exclusion |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (gatekeeping factors for admissibility of expert scientific testimony)
- State v. Foret, 628 So.2d 1116 (La. 1993) (Louisiana adoption of Daubert principles)
- Rando v. Anco Insulations, 16 So.3d 1065 (La. 2009) (substantial-factor test and proof standards in asbestos cases)
- Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973) (each defendant may be cause-in-fact where exposures are cumulative)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (methodology inquiry applies beyond pure “scientific” testimony)
- Robertson v. Doug Ashy Bldg. Materials, 77 So.3d 339 (La. App. 1st Cir.) (Robertson III) (prior appellate de novo Daubert review and reversal of trial court’s prior exclusion)