Expert Witnesses
MOTION TO EXCLUDE EXPERT TESTIMONY BASED ON INDOOR AIR STUDIES AND GRACE’S HISTORICAL PRODUCT TESTING.
by Paul Nicol
WR Grace contended that “the Government has not met—and cannot meet” the following standards required for foundation; 1) experts in the field would reasonably rely on indoor air studies, 2) “Grace’s historical product testing” is “sufficient to support an expert opinion,” 3) Grace’s experts used reliable methodology and 4) “expert opinion about friability is relevant to this case.”
The rules that govern whether experts may present opinion testimony at trial are Federal Rules of Evidence 702, 703, and 403. The Ninth Circuit remanded the case, in part, so the District Court could conduct an inquiry as to the admissibility of expert testimony.
WR Grace argued that the District Court “Must Holistically Analyze The Government’s Experts’ Reliance On Indoor Air Studies and Grace’s Historical Product Testing.” More specifically, the Ninth Circuit remanded so that the District Court would “conduct a Rule 702 analysis in light of the expert’s reasoning and methodology as a whole.”
Relying mainly its interpretation of the language from the Ninth Circuit opinion, WR Grace contended that “indoor air studies contain ‘not much’ information about friability” and “do not reflect the level of releases into the ambient air.”
WR Grace also suggested four other theories for why the tests to prove friability are not accurate. First, WR Grace suggests that “Indoor conditions may affect asbestos fibers differently than outdoor conditions.” Secondly, asbestos fibers in household dust may “behave differently than asbestos fibers contained in soil.” Third, indoor air studies may have used techniques that are “not appropriate for outdoor, soil-based conditions.” Finally, “asbestos fibers in the indoor air” vary over time and may be different from outdoor concentrations.
WR Grace next attacked the basis for the Government’s expert’s reliance on the friability tests arguing that the Government must show; 1) why an expert would rely on these tests, 2) what “methodology allows them to control” the variance in test conditions and real world conditions and 4) what other data the Government’s expert’s intend to rely on in forming the opinions. More succinctly the WR Grace contends that “indoor air releases have no demonstrated relevance to ambient-air releases.”
Finally WR Grace argued that Rule 403 requires the evidence of friability be excluded because the Government has “not provided any connection between the physical characteristics of friability and levels of exposure.” The theory is that expert testimony about friability would be unfairly prejudicial and mislead the jury.