A Michigan judge issued what could be a landmark ruling in asbestos litigation on November 19, 2008 when he dismissed medical evidence and expert testimony from a doctor who has diagnosed thousands of patients with asbestos-related diseases.
Circuit Judge Robert Colombo Jr.’s ruling throwing out evidence given by Dr. R. Michael Kelly, a Lansing internist and occupational medicine specialist at Mid-Michigan Physicians puts 2,131 asbestos lawsuits on his docket in jeopardy. The lawyers in those cases now need to find new experts to vouch for those diagnosed by Kelly.
The motion was filed by attorneys for Sure Seal, challenging Dr. Kelly’s expertise, saying he is neither a radiologist nor certified to read X-rays.
The motion also noted that he earned $500 per exam from the law firm of Goldberg, Persky and White. The attorneys said independent radiologists and their own experts found no evidence of disease in x-rays Dr. Kelly viewed as problematic, and that furthermore, Dr. Kelly was misusing a breathing test machine to create false positives.
“This is the way the legal system is supposed to work. About 1,000 doctors looked at these same 75 plaintiffs and none of them saw what Dr. Kelly saw nor heard what Dr. Kelly heard,” said Win Gault, attorney for Sure Seal.
Dr. Kelly declined to comment to the news media but testified during the hearing that he did not pocket the money. He said his methods were exact and radiologists not experienced in diagnosing asbestos disease could overlook the indicators he saw.
“They’re looking for acute illness, cancers. A hospital radiologist is not evaluating for a dust disease,” he said.
Asbestos-related diseases can take decades to develop.
Judge Colombo’s ruling excludes the diagnoses of Dr. Kelly on the basis that he does not meet the standards of reliability set by the U.S. Supreme Court for expert testimony.