MOTION TO EXCLUDE EXPERT TESTIMONY BASED ON INDOOR AIR STUDIES AND GRACEâS HISTORICAL PRODUCT TESTING.
by Paul Nicol
WR Grace contended that âthe Government has not metâand cannot meetâ the following standards required for foundation; 1) experts in the field would reasonably rely on indoor air studies, 2) âGraceâs historical product testingâ is âsufficient to support an expert opinion,â 3) Graceâs experts used reliable methodology and 4) âexpert opinion about friability is relevant to this case.â
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 âMust Holistically Analyze The Governmentâs Expertsâ Reliance On Indoor Air Studies and Graceâs Historical Product Testing.â More specifically, the Ninth Circuit remanded so that the District Court would âconduct a Rule 702 analysis in light of the expertâs reasoning and methodology as a whole.â
Relying mainly its interpretation of the language from the Ninth Circuit opinion, WR Grace contended that âindoor air studies contain ânot muchâ information about friabilityâ and âdo not reflect the level of releases into the ambient air.â
WR Grace also suggested four other theories for why the tests to prove friability are not accurate. First, WR Grace suggests that âIndoor conditions may affect asbestos fibers differently than outdoor conditions.â Secondly, asbestos fibers in household dust may âbehave differently than asbestos fibers contained in soil.â Third, indoor air studies may have used techniques that are ânot appropriate for outdoor, soil-based conditions.â Finally, âasbestos fibers in the indoor airâ vary over time and may be different from outdoor concentrations.
WR Grace next attacked the basis for the Governmentâs expertâs reliance on the friability tests arguing that the Government must show; 1) why an expert would rely on these tests, 2) what âmethodology allows them to controlâ the variance in test conditions and real world conditions and 4) what other data the Governmentâs expertâs intend to rely on in forming the opinions. More succinctly the WR Grace contends that âindoor air releases have no demonstrated relevance to ambient-air releases.â
Finally WR Grace argued that Rule 403 requires the evidence of friability be excluded because the Government has ânot provided any connection between the physical characteristics of friability and levels of exposure.â The theory is that expert testimony about friability would be unfairly prejudicial and mislead the jury.