Robertson v. Doug Ashy Building Materials, Inc.
77 So. 3d 339
La. Ct. App.2011Background
- Harris Robertson died of mesothelioma in 2004; the plaintiffs sued Sherwin-Williams among others for exposure to asbestos-containing products.
- The complaint alleged Harris was exposed to asbestos via joint compounds used by his drywall work (1960s–1970s).
- Sherwin-Williams moved for summary judgment in 2008 claiming no evidence of significant exposure from its stores or ownership; plaintiffs sought time and expert response.
- The trial court denied summary judgment, but later granted Sherwin-Williams’ motion to strike Dr. Mark’s causation testimony.
- Following subsequent motions, the trial court entered judgments granting new trials and ultimately summary judgment for substantial cause, which the appellate court reversed.
- The court remanded for further proceedings consistent with its view that there are genuine issues of material fact as to Sherwin-Williams’ liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on substantial contributing cause | Robertson pressed that Gold Bond was asbestos-containing and exposures were substantial | Sherwin-Williams contends no evidence of substantial exposure from its stores or ownership | Summary judgment on substantial cause reversed; issues remain genuine |
| Whether Dr. Mark’s causation testimony was properly struck | Mark’s opinions were based on valid methodology and literature | Court properly struck unreliable causation testimony | Trial court erred in striking Dr. Mark’s causation testimony; reversal of strike |
| Whether Daubert analysis properly applied | Daubert factors should govern reliability of Dr. Mark's testimony | Trial court correctly applied reliability assessment | Daubert analysis not properly applied; remand for proper evaluation |
| Remand and final disposition | Appellate review should determine liability issues anew | Judgments should stand or be narrowed | Remanded for further proceedings consistent with holding that material facts remain |
Key Cases Cited
- Rando v. Anco Insulations Inc., 16 So.3d 1065 (La. 2009) (causation in asbestos cases; substantial factor standard)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (Supreme Court 1993) (gatekeeping for scientific testimony reliability)
- Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (Supreme Court 1999) (Daubert applies to technical and other specialized knowledge)
- State v. Foret, 628 So.2d 1116 (La. 1993) (Louisiana adoption of Daubert framework)
- Corkern v. T.K. Valve, 934 So.2d 102 (La. App. 1st Cir. 2006) (Daubert analysis required for expert admissibility in Louisiana)