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Defendants' Motion in Limine To Exclude Expert Testimony on “Each and Every Exposure” Opinion Denied Based on Federal and Illinois Law U.S. District Court for the Southern District of Illinois, September 21, 2015

Various defendants filed a motion in limine to exclude the testimony of Matthew A. Vuskovich, M.D., M.S.P.H., arguing that he does not satisfy the requirements for expert testimony outlined in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Specifically, defendants sought to exclude his opinions based on the “every exposure” theory, because it is not accepted by the scientific community or the courts. The court denied the motion, as Federal Rule of Evidence 702 allowed for the theoretical basis for Dr. Vuskovich’s opinion. Although the “every exposure” theory has been rejected by some federal and state courts as unscientific and unsubstantiated by the evidence, other courts have distinguished testimony suggesting that a de minimus exposure to asbestos could cause mesothelioma.  Even if Dr. Vuskovish relied on the “every exposure” theory, such reliance would not render his testimony inadmissible.
 
Further, even though Dr. Vuskovich is neither a radiologist nor pulmonologist, and is unpublished in the field of asbestos, the full range of his practical experience, academic, and technical training renders him qualified to provide an expert opinion regarding diagnosis and causation.  Although the defendants argued that his opinions were not based upon sufficient facts or data, thus scientifically unsupported and unreliable, the Federal Rule of Evidence 702 did not incorporate the “general acceptance” test set forth in Frye v. United States, 54 App. D.C. 46 (D.C. Cir. 1923).  Based on FRE 702 and case law, the court noted that: “Reliability is primarily a question of the validity of an expert’s methodology, not the quality of his data or of the conclusions produced…A district judge who unduly scrutinizes the quality of the expert’s data and conclusions, rather than the reliability of the methodology he employed, usurps the role of the jury.”  Dr. Vuskovich complied sufficient information on which to base a report and opinions.

Read the full decision here. 

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