Constanza et al v. Sparta Insurance Company et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ERICA DANDRY CONSTANZA, ET AL. CIVIL ACTION
VERSUS CASE NO. 24-871
SPARTA INSURANCE COMPANY, ET AL. SECTION: “G”(5)
ORDER AND REASONS
Before the Court is Defendant Huntington Ingalls Incorporated’s (“Avondale”)1 Daubert
Motion to Exclude Testimony of Gerard Baril.2 In this litigation, Plaintiffs Erica Dandry Constanza
and Monica Dandry Hallner (collectively, “Plaintiffs”) allege Decedent Michael P. Dandry, Jr.
(“Decedent”), while an employee for Avondale, was exposed to asbestos and asbestos-containing
products manufactured, distributed, sold, and/or handled by Avondale and other parties.3 Plaintiffs
allege this exposure caused and/or contributed to Decedent’s development of mesothelioma and,
ultimately, his death.4 Avondale moves the Court to issue an Order excluding the testimony of
Plaintiff’s expert in industrial hygiene, Gerard Baril.5 Defendant Liberty Mutual Insurance
1 Huntington Ingalls, Inc. was formerly known as: Northrop Grumman Shipbuilding, Inc., Northrop
Grumman Ship Systems, Inc., Avondale Industries, Inc., Avondale Shipyard Inc., and Avondale Marine Ways, Inc.
2 Rec. Doc. 191.
3 Rec. Doc. 1-3 at 2. In addition to Avondale, Plaintiffs also named SPARTA Insurance Company, Bayer
CropScience, Inc., Foster-Wheeler, LLC, General Electric Company, Hopeman Brothers, Inc., Taylor-Seidenbach,
Inc., Paramount Global, Uniroyal, Inc., International Paper Company, Eagle, Inc., Uniroyal Holding, Inc., and Liberty
Mutual Insurance Company as defendants.
4 Id.
5 Rec. Doc. 191.
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Company joins the motion.6 Plaintiffs oppose the motion.7 Considering the motion, the memoranda
in support and in opposition, the record, and the applicable law, the Court denies the motion.
I. Background
Plaintiffs allege Decedent was employed in various positions by Avondale between June 1,
1971, and August 16, 1971.8 During that time, Plaintiffs claim Decedent was exposed to asbestos
and asbestos-containing products on Avondale’s premises.9 Plaintiffs further assert Decedent was
exposed to asbestos carried home from his work at Avondale on his person, clothing, and other
items.10 Plaintiffs argue, as a result of breathing in these asbestos fibers, Decedent later developed
mesothelioma and other ill health effects, ultimately resulting in Decedent’s death.11 Plaintiffs
contend Defendants had “care, custody, and control of the asbestos, which asbestos was defective
and which presented an unreasonable risk of harm, which asbestos resulted in the injury of
[Decedent] and for which these defendants are strictly liable under Louisiana law.”12 Plaintiffs
claim “Avondale and its executive officers [ ] are answerable for the conduct of those handling
asbestos products on their premises” and that “Avondale failed to exercise reasonable care for the
safety of persons on or around their property” for which there were clear “standards” requiring
protection for workers.13
6 Rec. Doc. 215.
7 Rec. Doc. 253.
8 Rec. Doc. 1-3 at 2.
9 Id.
10 Id.
11 Id. at 4.
12 Id. at 5.
13 Id.
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Plaintiffs also name numerous additional defendants who were in the business of
“manufacturing, fabricating, selling and/or distributing asbestos containing products.”14 Plaintiffs
allege that these defendants “sold, installed, removed and/or abated these products to and/or at
Avondale,” and Decedent was exposed to asbestos containing products as a result.15 Further,
Plaintiffs allege that these asbestos containing products were “unreasonably dangerous per se, were
defective in design, and constituted a breach of warranty from said manufacturers.”16
Trial in this matter is set to begin on March 9, 2026. On September 15, 2025, Avondale
filed the instant Daubert Motion to Exclude Testimony of Gerard Baril.17 On September 19, 2025,
Defendant Liberty Mutual Insurance Company joined the motion.18 On September 23, 2025,
Plaintiffs opposed the motion.19 On September 29, 2025, Avondale filed a reply brief in further
support of the motion.20
II. Parties’ Arguments
A. Avondale’s Arguments in Support of the Motion
Avondale moves the Court to issue an Order excluding the testimony of Plaintiff’s expert
in industrial hygiene, Gerard Baril.21 Avondale argues that Baril’s opinions are inadmissible
because they rest entirely on counsel-supplied, Avondale-only materials and ignore critical
14 Id. at 18.
15 Id. at 19.
16 Id.
17 Rec. Doc. 191.
18 Rec. Docs. 210, 215.
19 Rec. Doc. 253.
20 Rec. Doc. 280.
21 Rec. Doc. 191-1.
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alternative exposures.22 Avondale asserts an opinion based on a curated, one-sided record is
inherently unreliable.23 Because Baril did not consider Plaintiff’s substantial Johns-Manville
exposures, well-documented in family testimony and public records, Avondale argues that his
methodology fails Rule 702.24
B. Plaintiffs’ Arguments in Opposition of the Motion
In opposition, Plaintiffs contend that Avondale has not identified any testimony or records
documenting substantial Johns-Manville exposures sustained by Decedent.25 Plaintiffs suggest that
no such evidence exists.26 More importantly, even if evidence did exist that Decedent was
environmentally exposed to asbestos from Johns-Manville, Plaintiffs point out that Avondale fails
to explain what specific opinion or opinions of Baril it believes are unreliable.27
Plaintiffs argue that Baril is not required to specifically exclude every other possible
exposure source as a possible contributing factor before offering opinions as to Avondale.28
Plaintiffs contend that this is an improper attempt to require Plaintiffs to disprove Avondale’s
defense.29 Plaintiffs assert that the factual basis of Baril’s opinion goes to credibility, not
admissibility.30 Finally, Plaintiffs argue that Baril’s opinions are reliable and he is eminently
22 Id. at 7.
23 Id.
24 Id.
25 Rec. Doc. 253 at 1–2.
26 Id. at 2.
27 Id.
28 Id. at 5–6.
29 Id. at 6.
30 Id. at 12.
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qualified to testify in this matter.31
C. Avondale’s Arguments in Further Support of the Motion
In reply, Avondale argues that the problem is not with Baril’s methodology.32 Instead,
Avondale suggests the issue is that Plaintiffs’ counsel altered the facts by deliberately depriving
Baril of the facts necessary to apply those methods reliably.33
III. Legal Standard
The district court has considerable discretion to admit or exclude expert testimony under
Federal Rule of Evidence 702.34 Rule 702 states that a witness “qualified as an expert by
knowledge, skill, experience, training, or education,” may provide expert testimony when
“scientific, technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.”35 For the testimony to be admissible, Rule 702 establishes
the following requirements:
(1) the testimony must be based upon sufficient facts or data,
(2) the testimony must be the product of reliable principles and methods, and
(3) the expert must reliably apply the principles and methods to the facts of the case.36
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court explained that Rule
702 requires the district court to act as a “gatekeeper” to ensure that “any and all scientific
31 Id. at 14–21.
32 Rec. Doc. 280 at 3.
33 Id.
34 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d
358, 371 (5th Cir. 2000).
35 Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
36 Fed. R. Evid. 702.
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testimony or evidence admitted is not only relevant, but reliable.”37 The court’s gatekeeping
function mostly involves a two-part inquiry.
First, the court must determine whether the expert testimony is reliable, which requires an
assessment of whether the expert testimony’s underlying reasoning or methodology is valid.38 The
court’s inquiry into the reliability of expert testimony is flexible and fact-specific.39 The aim is to
exclude expert testimony based merely on subjective belief or unsupported speculation.40 In
analyzing reliability, Daubert instructs courts to consider (1) whether the theory has been tested;
(2) whether the theory has been subject to peer review and publication; (3) any evaluation of known
rates of error; (4) whether standards and controls exist and have been maintained with respect to
the technique; and (5) general acceptance within the scientific community.41
Second, the court must determine whether the expert’s reasoning or methodology “fits” the
facts of the case and whether it will assist the trier of fact in understanding the evidence.42 The
second inquiry primarily analyzes whether the expert testimony is relevant.43
37 Daubert, 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (clarifying that the
court’s gatekeeping function applies to all forms of expert testimony).
38 See Daubert, 509 U.S. at 589. The party offering the testimony has the burden to establish reliability by a
preponderance of the evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (citing In re Paoli
R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994)).
39 Seatrax, 200 F.3d at 372.
40 See Daubert, 509 U.S. at 590.
41 Id. at 592–94. In Kumho Tire, the Supreme Court emphasized that the test of reliability is “flexible” and
that Daubert’s list of specific factors does not necessarily nor exclusively apply to every expert in every case. Kumho
Tire, 526 U.S. at 141. The overarching goal “is to make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Id. at 152.
42 See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.
43 See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.
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Yet a court’s role as a gatekeeper does not replace the traditional adversary system.44 A
“review of the caselaw after Daubert shows that the rejection of expert testimony is the exception
rather than the rule.”45 “Vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.”46 “As a general rule, questions relating to the bases and sources
of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility
and should be left to the jury’s consideration.”47
Federal Rule of Evidence 704(a) provides that “[a]n opinion is not objectionable just
because it embraces an ultimate issue.”48 “The rule was enacted to change the old view that []
giving an opinion on an ultimate issue would ‘usurp the function’ or ‘invade the province’ of the
jury.”49 The rule, however, “does not open the door to all opinions.”50 Witnesses may not “tell the
jury what result to reach,” nor may they “give legal conclusions.”51 The Fifth Circuit has explained
that “the task of separating impermissible question which call for overbroad or legal responses
from permissible questions is not a facile one,” but one that requires courts to exclude questions
or answers from experts that “would supply the jury with no information other than the expert’s
44 See Daubert, 509 U.S. at 596.
45 Fed. R. Evid. 702 advisory committee’s note, “2000 Amendments.”
46 Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).
47 United States v. 14.38 Acres of Land, More or Less Sit. in Leflore Cnty., 80 F.3d 1074, 1077 (5th Cir.1996)
(quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)).
48 Fed. R. Evid. 704(a).
49 Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983).
50 Id.
51 Id. (citing United States v. Fogg, 652 F.2d 551, 557 (5th Cir. 1981).
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view of how its verdict should read.”52
IV. Analysis
Avondale argues that Baril’s opinions are inadmissible because they rest entirely on
counsel-supplied, Avondale-only materials and ignore critical alternative exposures. Avondale has
not demonstrated that Baril’s methodology was unreliable. The alleged alternative exposures are
part of Avondale’s defense. Avondale is free to cross-examine Baril about these exposures and
whether they impact his conclusions. “As a general rule, questions relating to the bases and sources
of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility
and should be left for the jury’s consideration.”53 Outright exclusion of Baril’s testimony is not
warranted.
Accordingly,
IT IS HEREBY ORDERED that Avondale’s Daubert Motion to Exclude Testimony of
Gerard Baril54 is DENIED.
NEW ORLEANS, LOUISIANA, this _____ day of February, 2026.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
52 Id.
53 14.38 Acres of Land, 80 F.3d at 1077 (internal citations and quotation marks omitted).
54 Rec. Doc. 191.
19th
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