Expert Testimony on Asbestos in Building Materials, Based on Regulations Aimed at Building Owners, Excluded as Speculation

A plumber and pipefitter worked at a number of jobsites over his 39-year career. Subsequently, he was diagnosed with mesothelioma. He and his wife sued multiple defendants who were responsible for the jobsites alleging occupational exposure to asbestos caused his mesothelioma. 


In support of their claims against one particular defendant, they provided a declaration from an expert witness. The expert witness asserted that at the time the plumber/pipefitter worked at the defendant’s construction sites the type of building materials the plumber/pipefitter worked with were made with asbestos. The expert based this opinion on federal regulations that state that this type of material present in buildings built during that time period should be presumed to contain asbestos. The expert also based this opinion on records that showed these buildings were later subject to asbestos abatement.


The trial court excluded the expert witness’s testimony because it was based on an improper foundation. It granted the defendant’s motion for summary judgment because the plumber/pipefitter did not have nor could he obtain evidence that the building materials he worked with at the defendant’s construction sites contained asbestos. And, “[h]ere … all that exists is speculation as to causation. The evidence establishes only that given the relevant time period—the late 1960's and early 1970's—at some point [the plumber/pipfitter] might have worked at jobsites where asbestos-containing products might have been used.”  


The California Court of Appeals affirmed the trial court’s decision excluding the expert witness’s testimony because it was speculation. The court noted, “The issue is whether there was or was not asbestos in this debris. The OSHA regulations are designed not to say whether there is or is not asbestos in any particular instance, but to set forth an efficient regulation as to warnings…”


See: Casey v. Perini Corp., 2012 WL 2122524 (Cal.App. 1 Dist., June 13, 2012) (not designated for publication).