Client Alert: Wisconsin Federal Court is Latest to Limit Testimony of Barry Castleman

           On May 14, 2015, District Judge Barbara B. Crabb, Western District of Wisconsin, issued an order disallowing medical state of the art testimony from Barry Castleman in Suoja v. Owens Illinois. The Court agreed with the defense that "plaintiffs have made no showing that Castleman is qualified to explain the meaning and significance of medical literature." The Court's holding is consistent with those from an ever increasing number of federal courts that have limited Castleman's testimony.

In Souja, Defendant Owens-Illinois filed three motions related to the admissibility of expert testimony: the first sought to exclude an opinion by Plaintiff's experts that "any exposure" caused Plaintiff's disease; the second sought to exclude experiments conducted by Dr. William Longo; and the third sought to exclude each of Castleman's opinions under Federal Rule 702.

The Court addressed only the Castleman motion after Plaintiffs withdrew the "any exposure" argument and withdrew Longo as an expert.

Plaintiffs offered to limit Castleman's testimony to "state of the art" - an explanation of the development of knowledge re health hazards of asbestos as reported in scientific literature and professional or trade organization documents. Plaintiffs argued that Castleman was qualified to give this testimony because of his background in the fields of public health, environmental engineering and chemical engineering.

Defendant responded with authority holding that Castleman was not qualified to explain the meaning and significance of medical literature. The Court agreed and granted Defendant's motion as it related to Castleman's testimony related to medical literature, but permitted his testimony regarding historical documents on the ground that such testimony would not require medical expertise.

The Court relied primarily on a case decided last year in the Northern District of Illinois, Krik v. Crane Co.[1] In Krik, the Court held that Castleman was not permitted to testify as to the accuracy of documents that he relied upon for his opinions when those documents related to subject areas in which Castleman had "little or no demonstrated expertise (such as medical literature)."   The Court in Krik, however, went on to find that Castleman possessed "specialized knowledge" regarding the literature relating to asbestos available during relevant time periods and permitted him to provide state of the art testimony regarding non-medical documents.

The Court's limitation on Castleman's testimony is consistent with two cases cited by the Defendant in Souja, - Rutkowski v. Occidental Chemical Corp. [2] and In re: Related Asbestos Cases. [3]

Rutkowski is a 1989 decision from the Northern District of Illinois, in which the Court held that Castleman lacked the medical background and experience to evaluate and analyze medical articles that would otherwise allow him to "identify which parts of the articles best summarize the author's conclusions."

In re: Related Asbestos Cases is a 1982 case from the Northern District of California; the Court there concluded that Castleman was not qualified to read medical articles "and discern which portions of the articles would best summarize the authors' conclusions" and noted that plaintiffs failed to establish that Castleman had the "knowledge or experience in (a scientific, professional, business, or occupational)...field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth."

Parties defending asbestos cases and seeking to limit the testimony of Barry Castleman should reference Suoja, Krisk, Rutkowski and In re: Related Asbestos Cases. As Krisk and Souja demonstrate, his testimony, at least as it applies to medical literature, is not admissible.