Plaintiff, Edward Montelongo, alleged that he has developed asbestosis due to exposure to asbestos through his work at various facilities, including Avondale Shipyards, Kaiser Aluminum & Chemical Corp., and Shell Oil Company’s Norco and Yscloskey facilities.
Defendant Huntington Ingalls Incorporated’s (formerly, “Avondale”) asked the Court to preclude Plaintiff’s industrial hygiene expert, Gerard Baril, from opining at trial that Plaintiff’s work with and around asbestos-containing products contaminated his home because Plaintiff carried asbestos fibers home with him on his clothing, leading to continued asbestos exposure long after Plaintiff ceased that work.
Industrial Hygiene Expert Witness
Gerard L. Baril has worked in the field of occupational safety, industrial hygiene, and environmental health since 1978. Baril has practiced industrial hygiene (starting as an industrial hygiene technician) since 1982.
Over the decades, he has conducted hundreds of industrial hygiene surveys qualifying and quantifying workers’ exposures to a wide array of airborne contaminants including asbestos.
In this case, Avondale did not contest that Baril was qualified to testify as an expert. Rather, Avondale challenged the reliability of Baril’s “contaminated house” opinions, arguing that they were “scientifically unreliable, methodologically unsupported, and inadmissible because they do not follow any accepted procedure, standard, or analytical framework recognized in industrial hygiene for determining whether a residence is contaminated with asbestos.” However, as Plaintiff argued, Baril “cited numerous references that support his opinions, including published, peer-reviewed literature, publications by governmental and scientific organizations, as well as occupational exposure standards and regulations.”
Therefore, Baril’s testimony is sufficiently reliable to satisfy the Court’s gatekeeping function under Daubert.
Held
The Court denied Avondale’s motion to partially exclude the testimony of Plaintiff Edward Montelongo’s retained industrial hygiene expert Gerard Baril.
Key Takeaway
It is the role of the adversarial system, not the Court, to highlight weak evidence. The fact that opposing parties do not agree with the facts relied upon by an expert, or with the expert’s interpretation of those facts, does not render the expert’s opinions unreliable. Challenges related to the basis of an expert’s opinions are thus best suited for cross-examination, not exclusion.
Please refer to the blog previously published about this case:
Plaintiff, Edward Montelongo, alleged that he has developed asbestosis due to exposure to asbestos through his work at various facilities, including Avondale Shipyards, Kaiser Aluminum & Chemical Corp., and Shell Oil Company’s Norco and Yscloskey facilities.
Defendants Huntington Ingalls Incorporated and Shell USA, Inc.’s (collectively, “Defendants”) retained medical expert Dr. Andrew J. Ghio. Plaintiff asked the Court to preclude Ghio from testifying at trial that Plaintiff has chronic obstructive pulmonary disease (“COPD”).
Pulmonary Medicine Expert Witness
Andrew Jonathan Ghio is board certified in both internal medicine and pulmonary medicine.
He is certified by the National Institute for Occupational Safety and Health (“NIOSH”) as a B Reader, meaning that he is certified to interpret radiology and diagnose lung conditions associated with dust exposures, including asbestos. He is widely published in the fields of pulmonary disease and internal medicine.
In this case, Plaintiff did not contest that Ghio is qualified to testify as an expert. Rather, Plaintiff challenged the reliability of Ghio’s opinion that Plaintiff has chronic obstructive pulmonary disease (“COPD”), arguing that it is unreliable in light of the uncontested fact that Plaintiff did not meet the American Thoracic Society (“ATS”) and the Global Initiative for Chronic Obstructive Lung Disease (“GOLD”) criteria for a diagnosis of COPD.
However, as Defendants argued, Ghio bases his expert opinion on multiple substantial sources other than the ATS and GOLD diagnostic criteria. The Court cannot determine that Plaintiff’s failure to satisfy the ATS and GOLD diagnostic criteria operates as a full-stop bar on Defendants’ experts testifying reliably that Plaintiff may have COPD.
Held
The Court denied Plaintiff Edward Montelongo’s motion to partially exclude the testimony of medical expert Dr. Andrew Ghio.
Key Takeaway
The fact that opposing parties do not agree with the facts relied upon by an expert or his interpretation of those facts does not render his opinions unreliable; challenges related to the basis of an expert’s opinions are thus best suited for cross-examination, not exclusion.
Case Details:
Case Caption:
Montelongo V. Bayer Cropscience, Inc.
Docket Number:
2:25cv555
Court Name:
United States District Court for the Eastern District of Louisiana
Plaintiffs Erica Dandry Constanza and Monica Dandry Hallner alleged that Decedent Michael P. Dandry, Jr., while an employee for Huntington Ingalls Incorporated’s (“Avondale”), was exposed to asbestos and asbestos-containing products manufactured, distributed, sold, and/or handled by Avondale and other parties.
Decedent was born in 1953, and the family home at the time of his birth was located at 407 Meyers Boulevard in Marrero, Louisiana, where he lived until he was two years old. Decedent also worked at a shoe repair shop located at 409 Meyers Boulevard. Both of these properties were part of a larger property located in the 400 block of Myers Boulevard at the intersection of Fourth Street, which was owned by Decedent’s grandfather.
Decedent’s sisters and daughters testified that the Dandry family property located in the 400 block of Meyers Boulevard at the intersection of Fourth Street in Marrero was one property owned by Michael Dandry, Jr.’s grandfather, Randolph Dandry. The testimony of Decedent’s sisters confirms that Decedent played in the driveway/courtyard area, they played in a galvanized tub of water in the driveway area, they were always “in and out” of the various Dandry businesses, and they continued to visit the family property even after moving to Oak Street.
Plaintiffs filed a motion to exclude certain opinions of Defendant Bayer CropScience, Inc.’s expert in industrial hygiene, Michael Holton.
Industrial Hygiene Expert Witness
Michael Holton is a Board-Certified Industrial Hygienist (CIH), a Board-Certified Safety Professional (CSP), and a Registered Environmental Health Specialist (REHS) in the state of New Jersey (inactive status) and has comprehensive industrial hygiene experience involving exposure assessment, ventilation system design, regulatory compliance auditing, and program development and training.
Holton concluded there is “reasonably significant potential for community asbestos exposures to residents of Marrero, LA” and Decedent “more likely than not had exposure to amphibole forms of asbestos, including crocidolite, from living his entire life in the Westbank, LA area.”
Reagan Maloney was hired by Avondale to take soil samples from the property. The Court, however, excluded Maloney’s testimony about the testing performed on those soil samples.
While Holton relied wholly on Maloney’s report to establish that the soil at Decedent’s childhood family property contains asbestos, he did offer one alternative theory for Decedent’s potential environmental exposure. Holton opined that Decedent may have had environmental exposure to asbestos due to the close proximity of various properties he frequented while living and working on the Westbank, and those properties which were found to have soil contaminated with asbestos in the 90s and 2005 reports.
With Maloney’s report excluded, Holton’s opinions about Decedent’s possible environmental exposures are based solely on the proximity theory and the circumstantial evidence of nearby asbestos-contaminated properties. Testing confirming the presence of asbestos in multiple locations surrounding areas where Decedent frequented on the Westbank is enough to support an opinion regarding what exposure to asbestos Decedent might have had living on the Westbank. However, Holton was not allowed to rely on Maloney’s report or opinions.
Held
The Court granted in part and denied in part Plaintiffs’ motion to preclude certain opinions of Michael Holton.
Key Takeaway
Although in some cases, “the source upon which an expert opinion relies is of such little weight that the jury should not be permitted to receive that opinion,” Plaintiffs have not demonstrated that this is such a case.
Please refer to the blog previously published about this case:
In this litigation, Plaintiffs Erica Dandry Constanza and Monica Dandry Hallner (collectively, “Plaintiffs”) alleged that Decedent Michael P. Dandry, Jr. (“Decedent”), while an employee for Defendant Huntington Ingalls Incorporated (“Avondale”), was exposed to asbestos and asbestos-containing products manufactured, distributed, sold, and/or handled by Avondale and other parties.
Avondale filed a Daubert motion to exclude the testimony of Plaintiff’s expert in industrial hygiene, Gerard Baril.
Baril offered opinions that these exposures sustained by Dandry at Avondale significantly increased his risk for mesothelioma, that these exposures exceeded current and historical exposure limits, and that Avondale failed to implement appropriate industrial hygiene safeguards to protect workers from asbestos.
Industrial Hygiene Expert Witness
Gerard L. Baril has worked in the field of occupational safety, industrial hygiene, and environmental health since 1978. Baril has practiced industrial hygiene (starting as an industrial hygiene technician) since 1982.
Over the decades, he has conducted hundreds of industrial hygiene surveys qualifying and quantifying workers’ exposures to a wide array of airborne contaminants including asbestos.
Avondale argued that Baril’s opinions are inadmissible because they rest entirely on counsel-supplied, Avondale-only materials and ignore critical alternative exposures. Avondale has not demonstrated that Baril’s methodology was unreliable. The alleged alternative exposures are part of Avondale’s defense. Avondale is free to cross-examine Baril about these exposures and whether they impact his conclusions.
The Court held that outright exclusion of Baril’s testimony is not warranted.
Held
The Court denied Avondale’s Daubert motion to exclude the testimony of Gerard Baril.
Key Takeaway
As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.
Please refer to the blog previously published about this case:
In this litigation, Plaintiffs Erica Dandry Constanza and Monica Dandry Hallner (collectively, “Plaintiffs”) alleged that Decedent Michael P. Dandry, Jr. (“Decedent”), while an employee for Defendant Huntington Ingalls Incorporated (“Avondale”), was exposed to asbestos and asbestos-containing products manufactured, distributed, sold, and/or handled by Avondale and other parties.
Dr. Stephen Terry Kraus is a medical doctor who received his medical degree from the University of Cincinnati College of Medicine in 1970. He is board certified in radiation oncology, and he has treated patients with mesothelioma and other forms of cancer in Louisiana since 1982.
Avondale contended that Kraus is not qualified to testify regarding industrial hygiene topics, including: (1) sources of Decedent’s asbestos exposure; (2) the standard of care for shipyard worker protection; (3) government standards applicable to the Avondale shipyard; (4) industry standards applicable to the Avondale shipyard; (5) permissible exposure limits for asbestos; and (6) state of the art knowledge of Avondale regarding the health hazards of asbestos.
Avondale argued that this testimony should be excluded because Kraus is a medical doctor, rather than an industrial hygiene expert.
Kraus reviewed deposition testimony regarding Decedent’s exposures, Decedent’s medical records, and the report of industrial hygienist Gerard Baril.
Based on Baril’s report and Kraus’ review of the scientific and medical literature, Kraus opined that Decedent would have sustained exposures to asbestos during his work at Avondale Shipyards that exceeded the current and historical permissible exposure limits. Kraus also opined that Decedent’s mesothelioma and death were caused by this occupational exposure to asbestos at Avondale. To the extent Avondale argued that Kraus is not qualified to offer this opinion, the Court found this argument unpersuasive. Kraus’ proposed testimony is based on scientific knowledge of the harmful level of exposure to asbestos and Baril’s opinion that Decedent was exposed to such harmful levels.
Avondale also took issue with references to the 1942 Walsh Healey Public Contracts Act, the 1943 Sanitary Code, and the 1951 Walsh Healey Public Contracts Act contained in Kraus’ report.
Avondale argued that Kraus should not be allowed to give “state of the art” opinions because he is a medical doctor. However, the Court noted that Avondale did not cite any authority for the proposition that only an industrial hygiene expert can give “state of the art” opinions.
Held
The Court denied Avondale’s Daubert motion to exclude certain testimony of Dr. Stephen Terry Kraus.
Key Takeaway
An expert witness is not strictly confined to his area of practice, but may testify concerning related applications; a lack of specialization does not affect the admissibility of the opinion, but only its weight.
On October 27, 2020, Plaintiff Robert Stephen Sentilles was diagnosed with mesothelioma. He filed a lawsuit against several Defendants, including Defendant Huntington Ingalls Incorporated (“Avondale”), claiming that his disease resulted from asbestos exposure that occurred from the 1950s to the 1980s.
With respect to Avondale, Sentilles asserted that he was personally exposed to asbestos when he worked at the shipyard in 1969 and that he was secondarily exposed from his brother Tom Sentilles’s clothing. At his deposition, Sentilles testified that he was exposed to asbestos when he worked in Avondale’s insulation shop from May 28, 1969, to June 24, 1969, sewing asbestos blankets that were installed on vessels under construction in Avondale shipyard.
Avondale retained industrial hygiene expert witness James Shea to counter Sentilles’ testimony. Shea produced two reports on March 8, 2022, and September 3, 2024. He was deposed on September 26, 2024.
However, Sentilles filed a motion to exclude some of Shea’s testimony and calculations from trial because they were not explicitly explained in his reports and would be confusing to the jury.
Industrial Hygiene Expert Witness
James Vick Shea Jr., CIH, CSP, specializes in industrial hygiene, occupational safety, environmental health, ergonomics, and occupational medicine administration for general industry. He is the founder of SheaSolutions, an occupational health and safety consulting firm. He received his Master of Science in industrial hygiene from the Central Missouri State University.
Sentilles challenged Shea’s calculations of Sentilles’ dosage exposure to asbestos, that Shea handwrote the night before the deposition, contending these calculations should have been included in Shea’s original reports. Plaintiff argued that both the calculations and related testimony should be excluded because they include analysis related to take-home exposures that have been dismissed and are based on assumptions not supported by the facts, specifically that Sentilles washed his brother Tom’s clothes.
Analysis
The Court held that Shea’s calculations and his testimony regarding Sentilles’s total dose of asbestos attributable to Avondale comply with Rule 26 and will not be excluded. As Avondale points out, the basis for Shea’s calculations is included in his report and all he did for the deposition was write out the arithmetic. Thus, there is no undue surprise to Sentilles in this regard. Sentilles could have had his experts perform the same math with the information provided in Shea’s report.
Moreover, Sentilles can address Shea’s calculations at trial through vigorous cross-examination and the presentation of countervailing expert testimony. Further, Shea’s testimony regarding Sentilles’s take-home exposure is neither confusing nor inadmissible. Shea candidly admits that, for the purposes of his report, he made the assumption that, although the facts are otherwise, Sentilles’s laundered his brother Tom’s clothes because no epidemiological data exists for the scenario of simply being around a person wearing asbestos-containing work clothes. However, this discrepancy is easily explained to, and understood by, the jury and, again, can be addressed through vigorous cross-examination and the presentation of countervailing expert testimony.
Held
The Court denied Sentilles’ motion in limine to exclude Avondale’s industrial hygiene expert witness James Shea’s testimony.
Key Takeaway:
Shea’s calculations were clearly based on data provided in his reports. His testimony regarding Sentilles’ take-home exposure is neither confusing nor inadmissible.
However, Shea candidly admits that, for the purposes of his report, he made the assumption that, although the facts are otherwise, Sentilles’s laundered his brother Tom’s clothes but certain discrepancies are easily explained to, and understood by, the jury and, again, can be addressed through vigorous cross-examination and the presentation of countervailing expert testimony.
Case Details:
Case caption:
Sentilles v. Huntington Ingalls Inc.
Docket Number:
2:21cv958
Court:
United States District Court for the Eastern District of Louisiana
In October 2020, Sentilles (Plaintiff) was diagnosed with mesothelioma and subsequently filed a case asserting negligence and strict liability claims against multiple defendants, including Avondale (Defendant). He claimed that his asbestos exposure from the 1950s to the 1980s caused his illness. Sentilles stated that he was personally exposed to asbestos while working at Avondale’s shipyard in 1969. He also alleged secondary exposure from his brother, Tom Sentilles. Tom’s work clothes contained asbestos while they lived and commuted together during his employment at Avondale.
In his deposition, Sentilles testified that during May and June 1969, he worked in Avondale’s insulation shop sewing asbestos blankets for ships under construction. At that time, Avondale was building vessels under contract with the U.S. Navy, Coast Guard, and the United States Maritime Administration (MARAD), and he recalled that some of the asbestos blankets were installed on Navy ships.
Avondale’s Compliance with Federal Inspection Standards
Avondale was constructing vessels for the U.S. government, it raised affirmative defenses, including derivative sovereign immunity and government contractor immunity. To support these defenses, Avondale hired marine engineer and former Navy officer Herfel as an expert witness. Herfel issued two reports analyzing the specifications, policies, and knowledge of the Navy, Coast Guard, and MARAD regarding the use of asbestos materials on their ships.
Herfel’s reports began by outlining his qualifications. He then described the case-specific evidence he reviewed, including various depositions, Sentilles’s Avondale employment records, and vessel construction contracts and specifications. He also researched records pertaining to the government ships constructed and repaired at Avondale before, during, and after Sentilles’s employment at the shipyard.
Herfel essentially rendered two opinions. First, he opined that the government, as stated in its contracts and vessel specifications, required asbestos-containing materials to be used on its vessels, and Avondale was required to act in “strict compliance” with that requirement. Federal inspectors regularly inspected Avondale to ensure compliance. Second, Herfel explained that the government’s research on the health hazards posed by asbestos dates back to the 1940s and concluded that a private-sector shipyard, such as Avondale, could not have had greater knowledge of those hazards than the federal government.
Maritime Expert Witness
Christopher P. Herfel earned a Bachelor of Science degree in marine engineering, with a minor in shipyard engineering management. He served eight years as a commissioned officer in the United States Naval Reserve. He held a Coast Guard-issued third assistant engineer’s license for steam and diesel propulsion, with unlimited horsepower. Herfel worked as a shipyard superintendent, managing the repair and overhaul of various military and merchant vessels. This work included asbestos abatement projects. He later served as the president and chief executive officer of McCaffery & Associates, Inc. This company specialized in researching and analyzing Navy, Coast Guard, and other government documents related to ship design, construction, maintenance, and repair. For the past 21 years, Herfel has researched and interpreted contracts, specifications, and records concerning materials used in the construction, maintenance, and repair of federal vessels.
Sentilles argued that Herfel’s testimony and opinions should be excluded from trial, citing a lack of qualifications and improper methodology. He claimed that Herfel was unqualified because he was not an industrial hygienist and lacked a degree in naval or maritime history or policy. Additionally, Sentilles criticized Herfel’s methodology, arguing that he had not reviewed relevant documents about Avondale’s asbestos history, that his references to OSHA and safety standards were irrelevant, and that he had no experience interpreting contracts. Sentilles also contended that Herfel’s former status as a Navy officer might mislead the jury into believing he spoke on behalf of the government.
In response, Avondale defended Herfel’s qualifications, emphasizing his education, work experience, and research. They stated that Herfel’s training and experience made him uniquely qualified to explain the historic policies and practices of the Navy, Coast Guard, and MARAD concerning asbestos-containing materials. Avondale clarified that it did not present Herfel as an industrial hygienist or shipyard historian. It argued that his lack of a history degree was irrelevant since his expertise stemmed from years of research and experience. Furthermore, Avondale contended that Herfel’s methodology was sound and did not require peer review because his field was not scientific. They asserted that Herfel’s testimony would help the jury understand complex government records related to shipbuilding.
Helpfulness to the Jury
The Court, considering both sides’ arguments and Herfel’s qualifications, ruled that he was qualified to testify. It found his opinions relevant and reliable. The Court noted that Herfel’s experience as a marine engineer and Navy officer, along with his two decades of research, made him well-suited to explain the government’s shipbuilding practices and asbestos policies. The Court concluded that Herfel’s testimony would assist the jury in understanding the government’s role in requiring asbestos on vessels. It also highlighted Avondale’s compliance and the historical information about asbestos hazards.
Held
The Court ordered that Sentilles’s motion in limine to exclude Christopher Herfel be denied.
Key Takeaway:
The Court ruled that the expert’s qualifications and the reliability of their testimony were sufficient for admissibility. It highlighted the necessity for the district court to serve as a gatekeeper. This role ensures that expert opinions assist the jury and are based on reliable methodologies. The Court noted that the factors for assessing the reliability of expert testimony, as established in precedent, should be flexible and tailored to the specifics of each case. Furthermore, the Court pointed out that challenges to an expert’s opinions should be addressed through cross-examination rather than exclusion. It emphasized the need for jurors to consider the expert’s insights alongside the arguments presented by attorneys.
Case Details:
Case Caption:
Sentilles v. Huntington Ingalls Inc.
Docket Number:
2:21cv958
Court:
United States District Court for the Eastern District of Louisiana
This case involved two buildings in downtown Burley, Idaho, located at 1222 and 1226 Overland Avenue which burned in late January 2018 and were subsequently demolished in mid-February 2018. A small portion of the debris from the buildings was hauled away to a local gravel pit which also operated as a landfill. Rising concerns about the possible presence of asbestos in the building debris caused the work to cease. Testing at the demolition site after the buildings were demolished was why the presence of asbestos in some of the demolition debris was allegedly confirmed during a clean up by an EPA contractor some six months later. Therefore, the Government asserted that asbestos was present in the buildings before they were demolished. The charges in this case arose from the demolition and clean up of the buildings, which began on February 17, 2018. The fire that damaged the buildings occurred during the early morning hours of January 29, 2018. The cause of the fire was investigated by state and federal law enforcement. Arson was suspected because of circumstances surrounding the fires, including the discovery of an undetonated pipe bomb at the front door of a restaurant located directly across the street from the burned buildings. The presence of this pipe bomb necessitated the involvement of a bomb squad to render it safe. Various individuals were interviewed during the law enforcement investigation of the cause of the fire including Pilling and his former business partner, Brian Tibbets. Pilling and Tibbets were owners of the restaurant where the pipe bomb was found and both were thought to be owners of the Overland buildings that burned. For his part, Pilling was out of the country on a ski trip at the time of the fire. No one was ever criminally charged with causing the fire or for involvement with the pipe bomb found across the street. Pilling was charged by indictment on December 14, 2022, with seven criminal counts related to the demolition and cleanup of the buildings. The Clean Air Act (CAA) provided for criminal penalties if a person knowingly violated the National Emissions Standard for Hazardous Air Pollutants (“NESHAP”) for asbestos that governed the removal of asbestos as the result of demolition and renovation activities. Pilling was charged with failure to thoroughly inspect 1222 and 1226 Overland for asbestos before the demolition commenced (Count One), failure to notify the EPA ten days prior to the commencement of demolition activity (Count Two), failure to remove asbestos prior to demolition (Count Three), failure to have an on-site representative trained in compliance with asbestos work practices (Count Four), failure to adequately wet the asbestos before it was disposed of (Count Five), discharge of visible emissions to the outside air from asbestos-containing waste material (Count Six), and failure to deposit asbestos and components covered with asbestos as soon as practical in a disposal site authorized to accept asbestos (Count Seven).
The parties have filed various motions in limine, all of which have been addressed by the Court.
The Defendant filed a motion in limine seeking to exclude six categories of evidence of which the Government opposed the motion as to four of the following categories: (1) Evidence that arson caused the fire at the buildings located at 1222 and 1226 Overland Avenue in Burley, Idaho, in late January 2018, that the buildings caught fire under suspicious circumstances, that a pipe bomb was discovered, or any inference that Pilling was responsible for any of the foregoing; (2) Evidence of any other crime, wrong, or act” of Pilling, if any, pursuant to F.R.E. 404(b); (3) Evidence that asbestos, which was allegedly found in very limited amounts in the Overland buildings debris, is “deadly,” that it may bring on serious diseases, or that “no level of exposure is considered safe;” and (4) Unsubstantiated belief or opinion held in the local community that Pilling was an “owner” of the buildings or demolition company.
The Government also filed two motions in limine in response. The first motion sought to limit the scope of the Defendant’s cross-examination of Richard Martinez, a Government witness, while the second motion requested a ruling on the admission of certain expert testimony by John Pavitt.
Chemistry Expert Witness
Richard Martinez is a Chemist at the United States Environmental Protection Agency’s (EPA) National Enforcement Investigations Center (NEIC), where his areas of work included inorganic and organic chemical analyses and asbestos identification. Martinez has held this position since 2000. He previously held the position of Physical Science Technician at NEIC from 1994 to 2000. Martinez received his Bachelor of Sciences Degree in Biology from the University of Southern Colorado in 1990.
Environmental Expert Witness
John Pavitt is a Clean Air Act Inspector and Case Officer with the United States Environmental Protection Agency (“EPA”) and has held that position since 1993. He earned a Bachelor of Science degree in Environmental Studies from Western Washington University in 1986. He has training with respect to the collection of samples for asbestos analysis, and intimate knowledge of the regulations surrounding asbestos treatment and disposal.
Discussion by the Court
Defendant sought to prevent the Government from presenting evidence or suggesting that arson caused a fire in Burley, Idaho, in January 2018; the buildings caught fire under suspicious circumstances; a pipe bomb was discovered nearby; or that Defendant was responsible for it. Defendant argued that it was irrelevant and substantially outweighed by the considerations set forth in Rule 403. The Government responded by contending that it needed to provide a coherent and comprehensible story regarding the commission of the crime as well as context for its other evidence such as statements made by the Defendant during an interview with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) investigators, but it never intended to present evidence of alleged arson as other-act evidence under Rule 404(b). The Court ruled that the Government could not suggest or offer evidence of arson, discovery of a pipe bomb nearby, suspicious circumstances surrounding the fire, or the Defendant’s involvement in it. However, the Government was permitted to briefly explain the context of the interview with ATF agents without implying any connection to the fire or suspicious circumstances.
The Defendant also sought to prevent the Government from offering evidence that asbestos is “deadly,” that it may cause serious diseases, and that “no level of exposure is considered safe.” The Government responded that the dangerousness of asbestos was relevant to the Defendant’s motive for not undertaking proper abatement and demolition measures. The Court held that the dangers of asbestos inhalation were not relevant to any element of the charged offenses. And, to the extent, that those dangers may have been indirectly relevant to the Defendant’s alleged motive, that relevance was substantially outweighed by the undue delay and unfair prejudice that would have accompanied the presentation of such evidence.
The Defendant sought to exclude evidence of any “unsubstantiated belief or opinion” held in the “local community” about his ownership of the buildings or demolition company. He argued that such “speculative” and “uninformed” testimony would be irrelevant and unfairly prejudicial. In response, the Government explained that it would not offer any “unsubstantiated” beliefs or opinions of community members, but it did intend to introduce an email from the Defendant’s father to the Defendant which ostensibly revealed the father’s belief that the Defendant owned the buildings.
At first blush, evidence indicating that the Defendant’s father believed the Defendant to be an owner of the buildings did not appear relevant to whether he actually was an owner. However, the Court observed that both parties indicated that the Defendant’s alleged ownership of the buildings and demolition company would be a key issue at trial. And, to the extent that the direct evidence bearing on ownership was inconclusive, evidence of the father’s belief may have had probative value as circumstantial evidence. Moreover, whatever prejudice that evidence may have had against the Defendant would not have been unfair considering the defense counsel would have the opportunity to challenge the weight of the evidence.
Accordingly, the Court agreed to allow the Government to offer evidence indicating that the Defendant’s father believed the Defendant to be the owner of the buildings.
As for the motions in limine filed by the Government, the Government sought to prevent the Defendant from cross-examining Richard Martinez, who analyzed samples for asbestos content in this case.
In 2020, Martinez was suspended from work for five days in connection with failures in his duties as a Waste Control Officer at the NEIC. Following a related investigation, the EPA Office of Inspector General (OIG) issued a report (the “OIG Report”) addressing “Staffing Constraints, Safety and Health Concerns” at the NEIC laboratory. And, in June of 2023, the EPA’s Office of Criminal Enforcement, Forensics and Training Professional Integrity and Quality Assurance (PIQA) disclosed a summary of a statement (the “PIQA Statement”) that Martinez made to investigators about his suspension and the matters addressed in the OIG Report. The PIQA Statement primarily focused on waste-handling concerns at the NEIC but included one reference to the NEIC’s “failing asbestos program.”
According to the Government, anything related to Martinez’s suspension, the OIG Report, and the PIQA Statement were irrelevant and did not implicate Martinez’s character for truthfulness. The Defendant responded by arguing that all three subjects were relevant. Namely, the suspension bore on Martinez’s expert qualifications and reliability, and the OIG Report and PIQA Statement reflected the “state of affairs at the NEIC at the time of its involvement in this case.”
The Court held that Martinez’s suspension arguably bore on the reliability of his expert testimony yet how much weight to give, or not give, the Defendant’s credibility challenges was the jury’s call. The Court noted that Martinez was suspended for his duty-related failures while employed at the NEIC, and that the fact of his suspension did appear to have some tendency to discredit his performance of other job duties, such as testing asbestos content.
The Court, based on the information now available to it, decided that the OIG Report and PIQA Statement addressed largely—if not entirely—unrelated concerns about the NEIC’s waste-disposal program and that the Report and Statement were irrelevant and off-limits on cross-examination to the extent it was true.
The Court determined that the OIG Report and PIQA Statement were fair game on cross-examination to the extent they addressed problems (1) at the NEIC testing facility and (2) within the asbestos program.
The Government also argued that Federal Rules of Evidence 404(a)(1) and 404(b)(1) precluded the Defendant from cross-examining Martinez about his prior suspension. Those rules barred the use of character and other act evidence to prove that a person acted in accordance with a certain character trait on a particular occasion. The Court held that the evidence of the suspension was not being offered to prove the witness’s character, but instead to rebut the Government’s representation of Martinez as a reliable expert whose testimony should be given special weight in light of his experience and expertise.
Next, the Government sought to introduce Pavitt as a “regulatory expert” in order to “orient the jury as to the ‘requirements of federal regulations and what routine practices’ of the regulated community should be ‘according to the regulations.” Pavitt was hired to (1) Explain that the Clean Air Act regulates the handling and removal of asbestos through NESHAP; (2) Explain “the applicability of the asbestos NESHAP;” (3) Provide and explain the regulatory definitions of various terms, such as “facility component,” “owner or operator of a demolition or renovation activity,” “demolition,” “facility,” “regulated asbestos-containing material,” “friable asbestos material,” and “waste generator;” and (4) Explain “what the work practice standards required.”
Defendant objected that Pavitt’s proposed testimony consisted of legal conclusions, usurped the Court’s role of instructing the jury, usurped the jury’s role of applying the law to the facts, was unhelpful, and created a risk of confusing the jury.
The Court held that Pavitt may not opine on the applicability of the asbestos NESHAP, what he believes the work practice standards require, or what he believes owners and operators “should” do to comply with those requirements because opinions about the applicability and meaning of the requirements constitute “legal conclusions.” Moreover, testimony about what owners and operators “should” do to comply with the requirements would also invade the province of the jury to apply the law to the facts. The Court observed that allowing Pavitt to explain when the legal requirements apply and what they require would create a risk of juror confusion, were the witness’s interpretation or description to differ in any respect from the Court’s final instructions.
Pavitt was, however, allowed to explain technical terms and concepts within the regulations that were likely unfamiliar to the jury and that were pertinent to his testimony considering the asbestos work practice standards contained several technical terms that are likely unfamiliar to the average juror.
The Court held that Pavitt will be allowed to explain the meaning of technical terms used in the NESHAP to the extent it is necessary for the jury to understand his testimony but will not be allowed to interpret ordinary terms that the average juror is likely to understand.
Held
The Defendant’s motion in limine to exclude evidence related to the cause of the fire, evidence related to the dangers of asbestos and beliefs and opinions about ownership of the buildings and demolition company was granted in part and denied in part by the Court. Both the motions in limine filed by the Government to limit cross-examination of EPA Witness and introduce regulatory expert testimony was, once again, granted in part and denied in part by the Court.
Key Takeaways:
Key takeaways regarding expert testimony include ensuring its relevance to the case, with a focus on addressing pertinent issues and clarifying complex matters for the jury. Challenges to expert qualifications and reliability are admissible, particularly concerning incidents in their professional history that may impact credibility. Limitations exist on the scope of expert testimony, notably restricting it from offering legal conclusions or assuming the role of the court or jury in interpreting and applying the law. Clarity is essential to avoid confusing the jury, with technical terms explained as needed, while overly complex or confusing testimony risks being excluded. Courts balance the probative value of expert testimony against the risk of prejudice, confusion, or misleading the jury, potentially excluding irrelevant or confusing testimony. Ultimately, the jury decides the weight and credibility of expert testimony, applying the law to the facts presented in the case.
Case Details:
Case Caption:
United States v. Pilling
Docket Number:
4:22cr282
Court:
United States District Court for the District of Idaho
