Comardelle v. Pennsylvania General Insurance
Comardelle v. Pennsylvania General Insurance
Opinion of the Court
Before the Court is a motion
BACKGROUND
Plaintiffs allege that decedent, Michael Comardelle (“Comardelle”), was “exposed to asbestos and asbestos-containing products manufactured, distributed, and sold” by defendants during the course of his employment from 1963 through 1979.
Among a myriad of other claims, plaintiffs allege that Comardelle was exposed to asbestos-containing “coatings, sealants, and mastics” manufactured, distributed, and sold by Amchem,
LAW AND ANALYSIS
A. Daubert and Rule 702
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); United States v. Hitt, 473 F.3d 146, 148 (5th Cir. 2006). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the*631 trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
“To qualify as an expert, ‘the witness must have such knowledge or experience in [his] field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.’” United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004) (quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)). Additionally, Rule 702 states that an expert may be qualified based on “knowledge, skill, experience, training, or education.” Hicks, 389 F.3d at 524; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (discussing witnesses whose expertise is based purely on experience). “A district court should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a given subject.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (quoting Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)). However, “Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility.” Id.; see Daubert, 509 U.S. at 596, 113 S.Ct. 2786.
The U.S. Supreme Court’s decision in Daubert “provides the analytical framework for determining whether expert testimony is admissible under Rule 702.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002). Both scientific and nonscientific expert testimony is subject to the Daubert framework, which requires trial courts to make a preliminary assessment to “determine whether the expert testimony is both reliable and relevant.” Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004); see Kumho Tire, 526 U.S. at 147, 119 S.Ct. 1167.
A number of nonexclusive factors may be relevant to the reliability inquiry, including: (1) whether the technique has been tested, (2) whether the technique has been subjected to peer review and publication, (3) the potential error rate, (4) the existence and maintenance of standards controlling the technique’s operation, and (5) whether the technique is generally accepted in the relevant scientific community. Burleson, 393 F.3d at 584. The reliability inquiry must remain flexible, however, as “not every Daubert factor will be applicable in every situation; and a court has discretion to consider other factors it deems relevant.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004); see Runnels v. Tex. Children’s Hosp. Select Plan, 167 Fed.Appx. 377, 381 (5th Cir. 2006) (“[A] trial judge has ‘considerable leeway’ in determining ‘how to test an expert’s reliability.’ ”). “Both the determination of reliability itself and the factors taken into account are left to the discretion of the district court consistent with its gatekeeping function under [Rule] 702.” Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000).
With respect to determining the relevancy of an expert’s testimony pursuant to Rule 702 and Daubert, the proposed testimony must be relevant “not simply in the way all testimony must be relevant [pursuant to Rule 402], but also in the sense that the expert’s proposed opinion would assist the trier of fact to understand or determine a fact in issue.” Bocanegra
B. Analysis
“[I]n a number of recent cases, plaintiffs and their experts have advanced the argument that every exposure to asbestos is a factor in producing their illness.” See Joseph Sanders, The “Every Exposure” Cases and the Beginning of the Asbestos Endgame, 88 Tul. L.Rev. 1153, 1157 (2014). As summarized by other courts addressing the admissibility of similar opinions, the “every exposure” theory “posits that any exposure to asbestos fibers whatsoever constitutes an underlying cause of injury to the individual exposed.” Krik v. Crane Co., 76 F.Supp.3d 747, 750, No. 10-7435, 2014 WL 7330901, at *2 (N.D.Ill. Dec. 22, 2014) (emphasis in original); see also Davidson v. Ga. Pac. LLC, No. 12-1463, 2014 WL 3510268, at *2 (W.D.La. July 14, 2014) (“Dr. Schwartz testified that the ‘every exposure’ theory includes all exposures to asbestos as a cause of mesothelioma because there is no way to know which exposures caused it and which ones did not.”).
Dr. Hammar’s proposed specific causation testimony is an example of this “every exposure” theory. In his expert report, Dr. Hammar opines that “all asbestos fibers inhaled by an individual that reach the target organ have the potential to contribute to the development of lung cancer, mesothelioma, and other asbestos-related diseases.”
Amchem moves to exclude Dr. Ham-mar’s testimony that Benjamin Foster 81-27 adhesive was a substantial factor in causing Comardelle’s mesothelioma. According to Amchem, this is an “every exposure” theory opinion which does not pass muster under Rule 702 or Daubert. Am-chem criticizes as wholly unsupported Dr. Hammar’s leap from the general-causation premise that every asbestos exposure increases the risk of mesothelioma,
First, in Smith v. Ford Motor Co., the district court excluded Dr. Hammar’s opinion that a plaintiffs exposure to brake dust caused his mesothelioma because “each and every exposure to asbestos by a human being who is later afflicted with meso-thelioma, contributed to the formation of the disease.” No. 08-630, 2013 WL 214378, at *1 (D.Utah Jan. 18, 2013). The Smith court held that opinion to be inadmissible and “agree[d] with the growing number of published opinions from other courts that have reached a similar result: that the every exposure theory as offered as a basis for legal liability is inadmissible speculation that is devoid of responsible scientific support.” Id. at *2. As the court in Smith succinctly explained, “Just because we cannot rule anything out does not mean we can rule everything in.” Id. at *3. The court also noted the complete lack of “studies, reports, examinations, or data of any kind to show that the alleged dust that Mr. Smith allegedly breathed in ... was sufficient to be a contributing cause, substantial or otherwise, to the development of the disease.” Id. at *4; accord Anderson v. Ford Motor Co., 950 F.Supp.2d 1217 (D.Utah 2013) (following Smith).
In Davidson v. Georgia Pacific LLC, the district court likewise rejected a causation opinion based on the “every exposure” theory, concluding that the theory “is not testable and consequently cannot have an error rate, thus failing to satisfy two Daubed factors.” 2014 WL 3510268, at *5. The court also faulted the expert for failing to rely on any data “that would show that any particular defendant’s product actually caused Davidson to develop meso-thelioma.” Id.
In Krik v. Crane Co., the district court rejected a specific causation opinion based on the theory that because an expert “cannot rule out that a single dose of asbestos causes injury.... any and all exposure to asbestos is necessarily harmful.” 76
In opposition, plaintiffs submit a number of orders from state courts apparently denying motions to exclude Dr.. Hammar’s opinions, albeit without any articulated reasoning or analysis.
The Court agrees with Amchem that Dr. Hammar’s proposed specific causation opinions in this case are unreliable and inadmissible, essentially for the' reasons articulated by the thoughtful opinions in Smith, Anderson, Davidson, and Krik. Although there may be no. known safe level of asbestos exposure, this does not support Dr. Hammar’s leap to the conclusion that therefore every exposure Comar-delle had to asbestos must have been a substantial contributing cause of his meso-thelioma. The Court agrees that this “is not an acceptable approach for a causation expert to take.” Krik, 76 F.Supp.3d at 753, 2014 WL 7330901, at *4, and it is “precisely the kind of testimony the Supreme Court in General Electric Co. v. Joiner ... observed as being nothing more than the ‘ipse dixit of the expert.’ ” Smith, 2013 WL 214378, at *2 (quoting 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). This kind of blanket specific causation opinion is not based on or tied to the specific facts and circumstances of any of Comardelle’s exposures to asbestos and it elides any differences or nuances of duration, concentration, exposure, and the properties of the fibers to which he may have been exposed.
IT IS ORDERED that Amchem’s motion is GRANTED. At trial, Dr. Hammar may not offer specific causation testimony based on the “every exposure” theory that Comardelle’s mesothelioma was caused by any particular exposure to a defendant’s product or premises, including Benjamin Foster 81-27. Dr. Hammar may opine regarding Comardelle’s diagnosis of meso-thelioma and issues of general causation. To the extent that this order and reasons rejecting the “every exposure” theory as a basis for specific causation testimony implicates the admissibility of testimony by other expert witnesses, those issues will be addressed by separate order. No such testimony shall be elicited without a prior order of the Court and the parties shall edit Dr. Hammar’s videotaped deposition to remove opinion testimony excluded by this Order and Reasons.
. R. Doc. No. 407.
. R. Doc. No. 407, at 1.
. R. Doc. No. 447.
. R. Doc. No. 1-2, ¶¶ 6, 66.
. R. Doc. No. 1-2, ¶ 9.
. R. Doc. No. 100.
. See R. Doc. No. 1-2, ¶ 45.
. R. Doc. No. 407-1, at 1.
. See R. Doc. No. 407-1, at 1-2; R. Doc. No. 447, at 1-2.
. " 'General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual’s injury.’” Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997)). Louisiana law recognizes this distinction. See, e.g., Zimko v. Am. Cyanamid, 905 So.2d 465, 485-86 (La.App. 4 Cir. 2005) ("Alternatively, American Cyanamid contends that Mrs. Zimko’s experts, at best, established general causation— that asbestos fibers a worker brings home can cause disease — not specific causation — that asbestos fibers from American Cyanamid’s facility actually caused Kenneth Zimko’s meso-thelioma.”).
.R. Doc. No. 407-1, at 1 & n. 1.
. R. Doc. No. 407-4, at 11-12 (emphasis added); see also id. at 17 ("[A]ll occupational and bystander exposures to asbestos above the concentration identified in the case-control epidemiology studies and within the latency period have the ability to contribute to the causation of mesothelioma, lung cancer, and other asbestos-related diseases.”).
. R. Doc. No. 407-5, at 11 (emphasis added); see also id. at 12 (agreeing that "all of Mr. Comardelle’s occupational exposures to asbestos were in fact contributing causes of his mesothelioma”).
. R. Doc. No. 407-5, at 15.
. This is referred to as a "dose-response” relationship in which "the more someone is exposed to asbestos, the greater their risk for the development of mesothelioma.” See, e.g., Davidson v. Ga. Pac. LLC, No. 12-1463, 2014 WL 3510268, at *1 (W.D.La. July 14, 2014).
. R. Doc. No. 407-1, at 7-8.
. R. Doc. No. 407-1, at 4-5. Amchem also moves to exclude the opinion because even if is reliable and admissible, it is "contrary to [Louisiana] law” and would not satisfy plaintiffs' burden of proof as to causation. See R. Doc. No. 407-1, at 9-12; see also Davidson v. Ga. Pac. LLC, 2014 WL 3510268, at *5-6 (excluding "every exposure” testimony on the additional basis that it is inconsistent with Louisiana tort law burdens of proof). The Court need not reach this issue at this time because the disputed opinion testimony is unreliable and inadmissible. The Court will address the applicable burden of proof with jury instructions, which will be consistent with the well-settled proposition that expert testimony is required to establish causation in a toxic tort case. See, e.g., LeBlanc ex rel. LeBlanc v. Chevron USA, Inc., 396 Fed.Appx. 94 (5th Cir. 2010) (affirming district court’s dismissal of Louisiana toxic tort claims on summary judgment after exclusion of plaintiff's causation experts); see also Burst v. Shell Oil Co., No. 14-109, 2014 WL 3893304, at *2 (E.D.La. Aug. 8, 2014) ("Under Louisiana law, ‘expert medical testimony is required when the conclusion regarding medical causation is one that is not within common knowledge.’ ”) (Vance, C.J.) (quoting Chavers v. Travis, 902 So.2d 389, 395 (La.App. 4 Cir. 2005)).
.The court in Davidson also reasoned that the "every exposure” theory is inconsistent with a Louisiana plaintiff's burden to establish causation. See id. at *6.
. R. Doc. No. 447, at 2-3; R. Doc. Nos. 447-2 to -4, -6 to -8. Plaintiffs submit one transcript from a hearing on a motion regarding Dr. Hammar's testimony which also offers little analysis. R. Doc. No. 447-5, at 10 ("I’m going to allow it all to go in. Let the Fourth Circuit deal with it.”).
. R. Doc. No. 407-5, at 19. Indeed, Dr. Hammar seems to acknowledge that the "every exposure” theory is an "absolute” approach at odds with "practical” concerns such as the nature of a particular exposure to asbestos:
Q. Assume for me, if you would, that Mr. Comardélle testified that he drilled through some corrugated siding to run electrical conduit.
A. Okay.
Q. Assume for me that he testified he did that a dozen times.
A. Okay.
Q. Assume that he testified that it took five to ten seconds for him to do that. And I want you to further assume, because he didn't know the answer to this, but I want you to assume that each time he did that the corrugated siding contained asbestos.
A. Okay.
Q. Do you have those assumptions in mind?
A. Yeah.
Q. In your opinion if he spent a dozen times five to ten seconds each time drilling through corrugated siding, so were talking somewhere between 60 seconds and 2 minutes of drilling, in your opinion was that activity alone a substantial factor in causing Mr. Comardelle’s mesothelioma?
A. Well, if you just looked at it from a practical — practical, I would probably say no. If you wanted to be absolute to say that everything counts, you would say yes.
R. Doc. No. 407-5, at 19.
. If the "every exposure” theory was a reliable basis for specific causation opinions, an expert witness would merely need to change a plaintiff’s name and work history and issue
. R. Doc. No. 447, at 3-15.
. For example, plaintiffs cite the Louisiana Fourth Circuit Court of Appeal's opinion in Thibodeaux v. Asbestos Corp. Ltd., 976 So.2d 859, 862 (La.App. 4 Cir. 2008), and attribute to that court the holding that “ 'any exposure to asbestos above background is a causative factor in producing the disease.’" R. Doc. No. 447, at 4 (quoting Thibodeaux). In fact, the language quoted by plaintiffs was the Fourth Circuit’s quotation of a party’s position — a position which the Fourth Circuit rejected. See Thibodeaux, 976 So.2d at 863 (“However, contrary to what the Thibodeauxs allege, this Court, in Torrejon [v. Mobil Oil Co., 876 So.2d 877 (La.App. 4 Cir. 2004) ] did not hold that the standard in ,an asbestos case was that 'any' exposure was sufficient to prove causation.”).
. The Court emphasizes that this holding is based on the unreliability of Dr. Hammar’s methodology. The Court expresses no opinion as to whether any of his specific causation conclusions might in fact be correct, or whether another qualified witness may offer reliable specific causation opinions in this case.
Reference
- Full Case Name
- Michael COMARDELLE v. PENNSYLVANIA GENERAL INSURANCE COMPANY
- Cited By
- 12 cases
- Status
- Published