Opinion
No. 2019-CC-01975
05-26-2020
Emily EVERETT v. AIR PRODUCTS AND CHEMICALS INC., et al.
Writ application granted. See per curiam.
Weimer, J., would deny.
Genovese, J., would deny.
Crain, J., would grant and docket.
PER CURIAM
Granted. Based on the limited information presented, we are unable to determine whether the district court abused its discretion in granting the motion to exclude Dr. Holstein's expert opinion on causation and to preclude him from testifying regarding specific causation. In particular, it is unclear whether the district court's ruling was based on concerns about Dr. Holstein's methodology or the evidentiary foundation of his testimony pursuant to La. Code Evid. art. 702(A)(2).
In reaching this conclusion, we note the district court's reasons for judgment suggest some confusion regarding the distinction between the qualitative and quantitative methods for establishing asbestos exposure. See generally Robertson v. Doug Ashy Bld. Materials, Inc. , 14-0141 (La. App. 1 Cir. 12/23/14), 168 So. 3d 556, writ denied , 15-0365 (La. 4/24/15), 169 So. 3d 364.
Accordingly, the judgment of the district court is vacated and set aside. The case is remanded to the district court to make specific findings, after an appropriate hearing, as to whether Dr. Holstein's testimony on causation satisfies the requirements of La. Code Evid. art. 702 as well as the considerations set forth in Daubert v Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret , 628 So. 2d 1116 (La. 1993).
To the extent there are disputes over the accuracy of the facts relied upon by Dr. Holstein, the court may find such a challenge goes to the weight of the testimony rather than its admissibility. Additionally, any challenge over the accuracy or sufficiency of the facts underlying the expert opinion may be resolved by an appropriate pre-trial motion, such as a motion for summary judgment, or at trial by the trier of fact. See, e.g. , Walashek v. Air Liquid Systems Corporation , 2016 WL 614030 (S.D.Cal. Feb. 16, 2016) (Not Reported in Fed. Supp.).
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