U.S. District Court judge dismisses mesothelioma case after finding expert witnesses unreliable

By Karen Kidd | Feb 17, 2019

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NEW ORLEANS — A federal judge recently dismissed the mesothelioma case of a man briefly employed as an engine room worker on Lake Pontchartrain in 1973, saying the case couldn't move forward without two expert witnesses she decided to exclude.

"The court excludes the causation opinions that plaintiff's experts Dr. Robert Harrison and Dr. David Tarin seek to offer at trial because they are not reliable under the Federal Rules of Evidence," U.S. District Court Judge Sarah S. Vance wrote in her order and reasons issued Feb. 5. "Without these expert opinions, plaintiff cannot establish the causation element of his claim at trial."

In her 27-page order and reasons, Vance, on the bench in Louisiana's Eastern District, granted summary judgment in favor of Dravo Basic Materials Company. Vance also dismissed all other motions as moot.

In his case against Dravo, Robert Schindler claimed he was exposed to asbestos while employed by Radcliff Materials, the predecessor company to Dravo, for about six weeks in early 1973, according to the background portion of Vance's order. During that time, Schindler was an engine room worker aboard the AVOCET, a dredge that collected clam shells in Lake Pontchartrain.

U.S. District Court Judge Sarah S. Vance   Law.Tulane.Edu

"Plaintiff worked as a merchant marine aboard many different vessels, and for many different companies, from 1966 until 2002," the order said. "Plaintiff alleges that in October 2016 he was diagnosed with mesothelioma."

Schindler previously filed a products liability suit against 42 defendants in California state court, including Dravo, in which he alleged each of those defendants were responsible for his exposure to asbestos over his career. Schindler voluntarily dismissed Dravo from his California suit on personal jurisdiction grounds and eventually settled claims in the California suit with the remaining defendants.

In November of 2017, Schindler filed a Jones Act personal injury lawsuit against Dravo, alleging he had been negligently exposed to asbestos while working aboard the AVOCET. That exposure, Schindler claimed, caused him to contract mesothelioma.

Harrison and Tarin were retained as expert witnesses to support Schindler's claims at trial. Dravo, referred to as "DBMC" in Vance's order, filed motions to exclude their expert testimony and for summary judgment.

"DBMC does not seriously dispute Dr. Harrison's general causation opinion that asbestos exposure can cause mesothelioma," Vance wrote in her order. "DBMC instead argues that Dr. Harrison's specific causation opinion is unreliable and should be excluded."

Harrison admitted during deposition that an October 2018 report that he wrote was for a workers' compensation case in California in which plaintiff Schindler was involved. In that "bare-bones report," Harrison stated that Schindler's "mesothelioma is a result of cumulative exposure to asbestos fibers from 1955 to 1988," the order said.

Harrison also admitted during deposition that he was unaware of Schindler's case pending in Louisiana when he wrote the report. In her order, Vance wrote "it is evident" that Harrison formulated his opinions with little awareness of Schindler's alleged exposure aboard the AVOCET.

"Dr. Harrison reasons that because 'each and every' asbestos exposure increases one's risk of developing mesothelioma, plaintiff’s alleged six-week exposure aboard the AVOCET caused his disease," Vance wrote in her order. "This method of finding specific causation has been rejected because it equates an increased risk of contracting the disease with a finding that any exposure was in fact the cause."

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