Following a two-day Daubert hearing that began on September 26th in Wilmington, DE, Judge Newsome granted Armstrong’s motion to exclude evidence presented by the plaintiffs’ expert witnesses. Judge Newsome’s ruling, announced Wednesday, is a second setback for the plaintiffs. On July 2nd, Judge Newsome denied the plaintiff’s request to file a class action lawsuit.

“Judge Newsome’s ruling represents another big step forward for Armstrong in the Chapter 11 process,” said Ken Jacobs, Armstrong’s deputy general counsel for litigation. “The court has accepted Armstrong’s argument that a significant group of asbestos claims are based on speculation and not sound science.”

Armstrong requested the Daubert hearing, which is used to determine what type of expert testimony regarding scientific testing is allowable under the Federal Rules of Evidence. The issue at the hearing was to decide what expert opinions could be used to prove or disprove claims that asbestos-containing flooring cause building contamination. Judge Newsome ruled that the methodology offered by the Asbestos Property Damage Committee in support of its claims is not a scientifically valid method of quantifying the level of asbestos contamination in a building.

The Asbestos Property Damage Committee alleges that asbestos-containing floor tile presents a health risk and, at Armstrong’s expense, the flooring should be removed from the buildings of property damage claimants. The committee asked the court to approve “settled dust sampling” as the appropriate measure for establishing that asbestos-containing floor tile releases asbestos fibers. The test is designed to count asbestos fibers in dust found inside buildings and to extrapolate those findings to determine how much asbestos is in the air people breathe.

Armstrong argued that settled dust sampling produces wholly inflated and unreliable results. Armstrong’s expert witnesses told Judge Newsome that “air monitoring,” which measures the number of asbestos fibers actually found in the air, is the most scientifically valid method of determining whether the presence of asbestos-containing floor tile poses a health risk. Armstrong maintains that air monitoring results in claimants’ buildings accurately reflect very low or no levels of asbestos which are equivalent to “background levels” (the amount of asbestos normally in the air).

Armstrong maintains its floors meet all safety regulations and that properly maintained, in place, asbestos-containing floors are non-friable, which means they will not release asbestos fibers under normal use. Armstrong stopped making asbestos-containing floors in the U.S. in 1982.

Prior to filing Chapter 11, Armstrong had only six unresolved property damage claims pending based on asbestos in floor products. Since filing Chapter 11, Armstrong now faces about 600 individual property damage claims, filed mostly by a handful of law firms. The claims allege more than $852 million dollars in damage related to asbestos-containing flooring. Armstrong believes these claims are opportunistic and have no merit.

Resolving these property damage claims is part of the effort to move Armstrong toward a plan of reorganization, which details how the company will emerge from Chapter 11 bankruptcy protection. Armstrong filed for Chapter 11 reorganization in December 2000 to resolve the tens of thousands of claims alleging personal injury from exposure to asbestos insulation.

Armstrong World Industries, Inc., a subsidiary of Armstrong Holdings, Inc., is a global leader in the design and manufacture of floors, ceilings and cabinets. In 2001, Armstrong’s net sales totaled more than $3 billion. Founded in 1860, Armstrong has more than 16,000 employees worldwide.

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Dorothy Brown Smith
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