Frye motion could be magic bullet for asbestos defense

Steve Korris Aug. 25, 2005, 1:34am

Justice Raymond Cornelius

Defendants in asbestos litigation may have discovered a magic bullet.

In a recent New York case, DaimlerChrysler challenged the reliability of “experts” and scored a double victory--the case went away and it recovered $16,650.

The Supreme Court of the Seventh Judicial Circuit, in Rochester, ruled Aug. 19 that Weitz and Luxenberg, of New York City, pursued a frivolous suit against the company.

The court entered a $10,000 judgment, the most it could award, against the firm. It determined that the fees of DaimlerChrysler’s local attorneys, Gibson, McAskill and Crosby of Buffalo, exceeded $10,000. And it awarded DaimlerChrysler reimbursement of $6,550 in other costs. The company spent almost $5,000 on document reproduction.

DaimlerChrysler came upon its good fortune by moving to preclude testimony of two expert witnesses for Dorothy DeMeyer, widow of tire shop owner David DeMeyer.

David DeMeyer had sued 29 companies Nov. 10. He had died Dec. 29, midway through a deposition.

In its motion to preclude, Daimler Chrysler asked for a hearing under the Frye doctrine of the U.S. Supreme Court, to determine if the witnesses met a standard of reliability.

A Frye hearing focuses on general acceptance in the relevant scientific community as the sole factor for determining reliability.

“A plaintiff needs reliable expert testimony to prove his case,” said attorney Mary Wells of Denver, who has written on the Frye doctrine. “If the testimony is not up to standard, the plaintiff cannot prevail.”

Wells said breast implant litigation of the 1990s provides the best example of the value of Frye hearings.

"There was an absence of reliable methods," she said. "The litigation was effectively terminated because the plaintiffs could not prove the case."

She said she had not heard about the New York case.

Justice Raymond Cornelius wrote in his order that the plaintiff learned March 21 that she could not prove a case against DaimlerChrysler, based on a deposition of a coworker.

The deposition contradicted a pulmonary report of plaintiff’s expert Jacqueline Moline and a pathology report of expert Jerrold Abraham.

DeMeyer’s attorneys pushed ahead anyway. They notified DaimlerChrysler May 2 that they would present expert testimony from Moline and Abraham.

DaimlerChrysler moved May 27 to preclude their testimony.

Weitz and Luxenberg offered June 8 to discontinue the claim against DaimlerChrysler. The company chose instead to pursue its motion.

The Supreme Court heard oral arguments June 9, and on June 27 the Court directed the Wayne County Circuit Court to hold a Frye hearing before trial.

Weitz and Luxenberg sent a letter to counsel for all defendants June 29, stating that they would withdraw Moline and Abraham.

Weitz and Luxenberg discontinued the claim against DaimlerChrysler June 30. Counsel told the Supreme Court that Moline and Abraham could not render an opinion that DaimlerChrysler was a substantial contributing factor to DeMeyer’s disease.

Cornelius wrote that the chronology led to an inevitable conclusion that the motion to preclude precipitated the offer to discontinue.

“Prior thereto,” he wrote, “counsel was content to allow the action to continue.”

He wrote that it was “particularly egregious” for Weitz and Luxenberg to disclose Moline and Abraham as expert witnesses May 2, when they knew or should have known March 21 that the experts could not render opinions against DaimlerChrysler.

“The above scenario reminds the Court of the looking glass book, which, at first, cannot be read, but if held to a glass, ‘the words will all go the right way again.’,” he wrote.

David DeMeyer did not file the suit in bad faith, Cornelius wrote, adding that Weitz and Luxenberg maintained it in bad faith from March 21 to June 9.

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Weitz and Luxenberg
700 Broadway
New York, NY 10003

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