Daubert Hearing Required For Physician's Causation Testimony In Seaman's Claim With Respect To Dust From 911 Debris
THOMAS J. GREEN, Plaintiff, -against- McALLISTER BROTHERS,INC., Defendant. McALLISTER BROTHERS, TOWING OF NEW YORK, sued herein asMcALLISTER BROTHERS, INC., Third-Party Plaintiff, THE CITY OF NEW YORK,Third-Party Defendant. JACK SALTARELLA, et al., Plaintiffs, -against- THE CITYOF NEW YORK, Defendant.
02 Civ. 7588 (FM), 03 Civ. 1482 (FM)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK
2005 U.S. Dist. LEXIS 4816
March 24, 2005, Decided
March 25, 2005, Filed
PROCEDURAL POSTURE: In separate Jones Act actions arising from exposure to debris following the destruction of the World Trade Center, (1) plaintiff former employee sued defendant former employer, which brought a third-party negligence claim against third-party defendant city, and (2) plaintiff city workers sued defendant city. In the first action, the parties moved in limine to preclude expert testimony. Defendants in both actions moved for summary judgment.
OVERVIEW: The employee claimed that he developed asthma and other medical problems while working on the employer's tugboat transporting barges that contained Trade Center debris. The city workers had worked aboard boats at a landfill where the debris was taken; they claimed that they had medical problems attributable to their handling of the debris. The parties consented to a magistrate's jurisdiction. In the first action, with respect to the admissibility of testimony by the employee's treating physician that the employee's illness was caused by his exposure to Trade Center dust while working for the employer, there was an adequate showing of general causation; however, a Daubert hearing was necessary to determine why the physician ruled out as a cause any earlier exposure the employee may have had to Trade Center debris. Medical testimony offered by the employer and the city was admissible. In the second action, the workers had failed to designate any expert witnesses and therefore could not show causation as required for their toxic tort claim, and they could not recover for fear of future illness absent any physical manifestation of their exposure to asbestos or carcinogens.
OUTCOME: In the first action, the magistrate ordered a Daubert hearing prior to ruling on the admissibility of certain of the physician's proposed testimony; the motions in limine by all parties and the motion for summary judgment were otherwise denied, except to the extent that they might be affected by the Daubert ruling. The city's summary judgment motion in the second action was granted.
