Bobo v. AGCO Corporation et al

Filing 188

MEMORANDUM OPINION AND ORDER that the 129 MOTION Exclude Specific Causation Opinion of Doctor Wulsin is MOOT and of Doctor Mark is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/25/2014. (AHI)

FILED
2014 Aug-25 PM 04:09
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MELISSA ANN BOBO and
SHARON JEAN COX, as
Co-Personal Representatives of the
Estate of Barbara Bobo,
Plaintiffs,
vs.
TENNESSEE VALLEY
AUTHORITY,
Defendant.

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Civil Action No. CV 12-S-1930-NE

MEMORANDUM OPINION AND ORDER
Barbara Bobo commenced this action against nine defendants.1 Eight of those
were dismissed pursuant to stipulations for dismissal,2 leaving only her claims against
1

See doc. no. 1 (Complaint), asserting claims against: (i) Agco Corporation, formerly known
as Allis Calmers Company, sued as successor to Massey Ferguson Limited (“Agco”); (ii) CBS
Corporation, formerly known as Viacom, Inc., sued as successor-by-merger to CBS Corporation,
formerly known as Westinghouse Electric Corporation (“CBS”); (iii) Conopco, Inc., doing business
as Unilever United States, Inc., sued individually and as successor-by-merger to Helene Curtis
Industries, Inc. (“Conopco”); (iv) Consolidated Aluminum Corporation, also known as Conlaco, Inc.
(“Consolidated Aluminum”); (v) Dana Companies LLC, sued individually and as successor-ininterest to Victor Gasket Manufacturing Company (“Dana”); (vi) Ford Motor Company (“Ford”);
(vii) Metropolitan Life Insurance Company (“MetLife”); (viii) TVA; and (ix) Unilever United States,
Inc., sued individually and as successor-by-merger to Helene Curtis Industries, Inc. (“Unilever”).
2

The following claims were dismissed in accordance with stipulations of dismissal filed by
Mrs. Bobo and the defendants noted: doc. no. 18 (Ford); doc. no. 19 (Order Dismissing Ford); doc.
no. 44 (AGCO); doc. no. 45 (Order Dismissing AGCO); doc. no. 47 (Conopco and Unilever); doc.
no. 48 (Order Dismissing Conopco and Unilever); doc. no. 53 (Consolidated Aluminum); doc. no.
56 (Order Dismissing Consolidated Aluminum); doc. no. 60 (CBS); doc. no. 61 (Order Dismissing
CBS); doc. no. 62 (Dana Companies); doc. no. 64 (Order Dismissing Dana Companies); doc. no. 78
(MetLife); doc. no. 79 (Order Dismissing MetLife).

the Tennessee Valley Authority (“TVA”). Plaintiffs, who are the co-personal
representatives of the estate of Mrs. Bobo,3 maintain a variety of claims against TVA
based on Mrs. Bobo’s contraction of pleural mesothelioma from laundering her
husband’s work clothes, purportedly containing asbestos dust originating from his job
duties at TVA’s Browns Ferry Nuclear power general facility in Limestone County,
Alabama. The action is presently before the court on TVA’s motions to exclude the
specific causation opinions of Doctors Virginia Wells Wulsin and Eugene Mark.4 For
the following reasons, the motion to exclude the specific causation opinion of Dr.
Victoria Wulsin is MOOT, and the motion to exclude the specific causation opinion
of Dr. Eugene Mark is DENIED.
I. Motion to Exclude the Testimony of Dr. Virginia Wells Wulsin
TVA contends that the testimony of Dr. Virginia Wells Wulsin should be
excluded because she failed to consider other potential exposure sources, and she
“fail[ed] to bridge the analytical gap” between her opinions in this case and the
scientific evidence upon which she relied.5 In response, plaintiffs state that they have
“elected not to offer any specific causation testimony from Dr. Wulsin.”6 Rather,
3

See doc. no. 179 (Order substituting parties).

4

Doc. no. 129.

5

Doc. no. 130 (Brief in Support of TVA’s Motion to Exclude the Specific Causation
Opinions of Doctors Wulsin and Mark), at 1-2 (alteration supplied).
6

Doc. no. 133 (Plaintiffs’ Memorandum in Opposition to Defendant Tennessee Valley

2

plaintiffs assert that Dr. Wulsin will only testify concerning issues of general
causation, including the topics of the relevant epidemiological literature, state of the
art, public health, and regulatory matters.7 Based upon plaintiffs’ certification that
Dr. Wulsin “will not testify that Barbara Bobo’s mesothelioma was specifically
caused by her exposure to asbestos originating at TVA,”8 the court finds TVA’s
motion to exclude Dr. Wulsin’s specific causation opinion moot.
II. Motion to Exclude the Testimony of Dr. Eugene Mark
TVA next argues that Dr. Eugene Mark’s testimony should be excluded on the
grounds that his “every exposure” or “single fiber” causation theory lacks a reliable
scientific foundation, and that he failed to sufficiently connect his opinions in this
case to the scientific evidence upon which he relied.9
Federal Rule of Evidence 702 provides that:
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 trier of fact to understand the evidence or to
Authority’s Motion to Exclude the Specific Causation Opinions of Doctors Wulsin and Mark), at
1.
7

Id.

8

Id.

9

Doc. no. 130 (Brief in Support of TVA’s Motion to Exclude the Specific Causation
Opinions of Doctors Wulsin and Mark), at 1-2.

3

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.
Fed. R. Evid. 702. That rule compels district courts to “conduct an exacting analysis
of the foundations of the expert opinions to ensure they meet the standards for
admissibility under Rule 702.” United States v. Abreu, 406 F.3d 1304, 1306 (11th
Cir. 2005) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)
(internal quotation mark and emphasis omitted)).
[T]he objective of that requirement is to ensure the reliability and
relevancy of expert testimony. It 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.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (alteration supplied).
“The inquiry . . . is a flexible one,” because “[m]any factors will bear on the inquiry,
and . . . [there is no] definitive checklist or test.” Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993) (alterations supplied). Factors
that may be relevant include:
(1) whether the theory or technique can be (and has been) tested, (2)
4

whether the theory or technique has been subjected to peer review and
publication, (3) in the case of a particular . . . technique, the known or
potential rate of error, and (4) whether the theory or technique is
generally accepted by the relevant . . . community.
Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010)
(internal quotation marks and alterations omitted).10
1.

Dr. Mark’s background and qualifications

Dr. Mark obtained his medical degree from Harvard Medical School in Boston,
Massachusetts.11 He completed a one-year internship in internal medicine at Stanford
University Medical Center in Palo Alto, California, and four years of residency in
anatomic and clinical pathology at Massachusetts General Hospital in Boston,
Massachusetts.12 Dr. Mark is licensed to practice medicine in Massachusetts, and is
10

Additional factors that may be taken into account by a district court include:

(1) Whether the expert is proposing to testify about matters growing naturally
and directly out of research he has conducted independent of the litigation, or
whether he has developed his opinion expressly for purposes of testifying;
(2) Whether the expert has unjustifiably extrapolated from an accepted to an
unfounded conclusion;
(3) Whether the expert is being as careful as he would be in his regular
professional work outside his paid litigation consulting;
(4) Whether the field of expertise claimed by the expert is known to reach
reliable results for the type of opinion the expert would give.
Fed. R. Evid. 702 advisory committee’s note to 2000 amendments (internal citations omitted).
11

Doc. no. 125 (Expert Report and Declaration of Eugene Mark, M.D.), at 2.

12

Id.

5

board-certified in pathologic anatomy, clinical pathology, and dermatopathology.13
He is currently a physician and a pathologist at Massachusetts General Hospital.14
The pathology department of Massachusetts General Hospital receives
numerous lung biopsies every day because of the medical, surgical, oncology, and
lung transplant services provided.15 As director of the lung pathology service, Dr.
Mark primarily receives, and then examines, biopsies of lung tissue.16 In the course
of his career, Dr. Mark has diagnosed or reviewed a few thousand cases for the
presence of an asbestos-related disease.17
Dr. Mark is also a professor of pathology at Harvard Medical School.18 He
leads classes at a variety of levels, including training medical students, physicians,
and nurses.19 Further, Dr. Mark is a District Medical Examiner for the Commonwealth
of Massachusetts.20 He has also served on the editorial boards for various professional
medical journals, including Human Pathology, International Journal of Pathology,
Archives of Pathology and Laboratory Medicine, and American Journal of Industrial
13

Id.

14

Id.

15

Id.

16

Id.

17

Doc. no. 125 (Expert Report and Declaration of Eugene Mark, M.D.), at 2.

18

Id.

19

Id.

20

Id.

6

Medicine.21 In addition, he has authored two books and published more than 150
original articles and 300 case records in the New England Journal of Medicine.22
Many of those publications addressed diffuse malignant mesothelioma and its
causes.23
Finally, Dr. Mark is the senior director of an annual week-long pathology
course that is attended by pathologists from around the world.24 The syllabus for that
course includes many facets of surgical pathology, including pulmonary diseases such
as those caused by asbestos exposure.25
2.

Dr. Mark’s report

Dr. Mark submitted an expert report on April 18, 2013, and opined that “Mrs.
Bobo’s exposure to asbestos fibers brought home on her husband’s clothing while he
worked at the TVA was a substantial contributing factor and a medical cause in the
development of her diffuse malignant mesothelioma of the pleura.”26 He indicated
that his conclusions were based upon a review of materials produced during the
course of this litigation, as well as upon the basis of the scientific and medical

21

Id. at 3.

22

Id.

23

Doc. no. 125 (Expert Report and Declaration of Eugene Mark, M.D.), at 3.

24

Id.

25

Id.

26

Id. at 27.

7

literature discussed in his report, and his training, education, and experience.27
Dr. Mark’s conclusion that Barbara Bobo’s exposure to asbestos fibers brought
home on her husband’s clothing was a substantial contributing factor in the
development of her mesothelioma was based on several factors, including the
following considerations:
•

Ms. Barbara Bobo developed a diffuse malignant mesothelioma
of the pleura;

•

According to the depositions, work history sheets, and medical
records, Ms. Bobo was exposed to asbestos through laundering
her husband’s work clothing. Her husband, Neil Bobo, worked
for the Tennessee Valley Authority as a laborer. His job involved
working around insulation as well as sweeping insulation
materials up from the ground. His work activities at the
Tennessee Valley Authority resulted in him bringing asbestos
fibers home on his clothing.

•

Mrs. Barbara Bobo testified about the visible dust that was
created when she shook out Neil Bobo’s work clothes prior to
washing them. Visible dust creates exposures of 5 million
particles or more of cubic air.

•

All of the exposures to asbestos described here which took place
prior to the occurrence of the malignancy are the types that have
been proven by scientific evidence in their accumulation to cause
diffuse malignant mesothelioma . . . .28
a.

27

Id. at 3.

28

Diffuse malignant mesothelioma

Id. at 1-2.

8

Diffuse malignant mesothelioma is considered a “signal tumor” for asbestos
exposure, because “[t]he causation link between asbestos exposure and diffuse
malignant mesothelioma is so well established that when [the disease develops] it
‘signals’ prior asbestos exposure . . . .”29 Therefore, Dr. Mark concluded that diffuse
malignant mesothelioma is different from most other cancers, because the
development of the disease itself reveals the cause to a reasonable degree of medical
certainty.30
b.

Barbara Bobo’s exposure to asbestos

In analyzing Mrs. Bobo’s alleged exposure to asbestos as a result of laundering
her husband’s work clothing, Dr. Mark relied on the deposition testimony of James
Bobo, Barbara Bobo, Jimmy Myhan, and Priscilla Carthen.31
Dr. Mark began this section of his report by providing the following summary
of James Bobo’s work history with TVA:
On April 15, 1975, Neil Bobo began his employment with the
29

Doc. no. 125 (Expert Report and Declaration of Eugene Mark, M.D.), at 1-2 (alterations
supplied).
30

Id. at 9-10.

31

James Bobo’s deposition testimony may constitute inadmissible hearsay. Even so, “expert
opinions based on otherwise inadmissible hearsay” may be admitted, “if the facts or data are ‘of the
type reasonably relied upon by experts in the particular field in forming opinions or inferences upon
the subject.’” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993) (citing Fed.
R. Evid. 703). Upon consideration, this court finds that the contents of James Bobo’s deposition are
“of the type reasonably relied upon by experts” in Dr. Mark’s field. Id.

9

Tennessee Valley Authority, at the Browns Ferry Nuclear Plant in
Athens, Alabama. He was employed as a laborer throughout his entire
employment with the Tennessee Valley Authority[.] Mr. Bobo was the
laborer assigned to the crafts like the insulators that put up insulation.
On occasion, he would help the insulators, but most often he just swept
up the insulation that was torn off the pipes off the floor. One of the
brands of pipe covering he cleaned up at the TVA was Kaylo pipe
covering[.] Mr. Bobo first saw a box of Kaylo pipe covering when he
started at the TVA in 1975. The Kaylo insulation was half-moon
shaped, brownish on the inside, and rough to the touch. He first saw an
Insulag bag when he first started at the TVA. Mr. Bobo was around
when the insulators would mix the Insulag with water in a skip pan.
This happened on more than 10 occasions, maybe even 50 times.
Sweeping up after the insulators was one of the dusty tasks he
performed.
Mr. Bobo remembered working with gaskets and packing during
his time at the TVA, including sheet gasketing. He occasionally cut
gaskets and helped remove a gasket, but his primary involvement with
gaskets involved throwing away the scraps. Mr. Bobo first saw sheet
gasketing when he began at the TVA in 1975. He remembers his
coworkers cutting gaskets. Mr. Bobo also assisted the boilermakers by
cleaning up after they used firebrick in the ovens and furnaces. He was
also close by when the boilermakers had to cut the firebrick.
Mr. Jimmy Myhan was employed at the TVA Browns Ferry plant
starting March 12, 1976. He remembered working alongside Mr. Bobo
for a number of years beginning in approximately 1976. Mr. Myhan
worked at Browns Ferry until 1993, except for [a] two year time period
(between October 1978 – August 1980) where he left for other
employment. Laborers [such as Mr. Bobo] at the Browns Ferry plant
would work all over the plant, escorting visitors, standing fire watch,
and primarily performing cleanup. The “plant side” laborers would do
the clean up inside the plant and some of the outside buildings. The
plant side laborers were typically annual (salaried) employees. The
“outside” or “construction side” employees were typically paid hourly,
and were in charge of construction outside of the buildings.
10

Mr. Myhan worked with Mr. Bobo, at times on the same crew,
cleaning floors, wiping piping down, and changing laundry. Between
1976 and when Mr. Myhan left to work at another place, they would get
job assignments to do various tasks, including clean up and sweeping
the floors.
Approximately once a month, Mr. Bobo and Mr. Myhan worked
together cleaning up insulation that had been removed from pumps and
pipes overhead. The pipe insulation was brown and shaped like “half
rounds” that fit together to cover the pipe. The white insulation
covering the pipes had a chalk-like consistency. Mr. Myhan believed
that the pipe insulation that he and Mr. Bobo cleaned up would have
been the insulation installed in 1966 when the plant was built, because
there would be no reason to change it. When they swept up the
insulation, the dust from the insulation would become airborne and land
everywhere, including Mr. Bobo’s clothes. They performed this cleanup
work all over the plant, in all three units.
Mr. Myhan now associates asbestos with several places at the
Browns Ferry plant, including pipe insulation. The insulation was
brown or white. Both Mr. Myhan and Mr. Bobo cleaned up insulation
from pieces of equipment. At some point in time, the pipefitters were
not allowed to work with certain potentially asbestos-containing
equipment, but there was no such prohibition on the laborers that came
up and cleaned the insulation behind them. The laborers would use
brooms, rags and mops to clean up the insulation, which was dusty[.]
Other than radioactively contaminated (“C zone”) areas,
employees of the Browns Ferry plant were not required to wear
respiratory protection. In “C zones,” the laborers would wear white
cloth coveralls, booties, gloves, a surgical cap and sometimes masks.
When they came out of the C zone, the laborers would put their gloves
and face mask in one bag, and their coveralls in another bag. If the
laborers were not in a C zone, they would wear their street clothes to
work, and wear their same street clothes home. Laborers, including Mr.
Bobo, did not shower or do any personal clean up before going home.
Mr. Bobo wore blue jeans and shirts to work. He wore the same clothes
11

home from work.32
Dr. Mark then turned to consider Barbara Bobo’s exposure to asbestos as a
result of laundering her husband’s work clothes:
Barbara Bobo married James “Neal” Bobo on September 28,
1964. Mrs. Bobo was exposed to asbestos by washing her husband’s
work clothes. Mrs. Bobo washed her husband[’]s clothes twice a week
in the approximately four foot by five foot wash room located in the
center of her house. First, she would walk around the house and pick up
her husband’s clothes wherever he laid them. Then[,] she would go into
the washroom and shut the door, empty the pockets out, shake them
out[,] and then put them in the washing machine. Shaking out the
clothes caused dust to go in the air, and she breathed that dust. Mrs.
Bobo would clean the floors of the washroom with a small broom and
dust pan. Sweeping the floors also created airborne dust that Mrs. Bobo
breathed.33
Dr. Mark then provided a list of various materials he had reviewed that discuss
how asbestos fibers can be released from clothing while an individual performs
household tasks, like those described by Mrs. Bobo.34
c.

General causation opinions

According to the report, “[a] reasoned and thorough and multi-disciplinary
scientific approach” is necessary in determining the cause of a disease.35 Such an

32

Doc. no. 125 (Expert Report and Declaration of Eugene Mark, M.D.), at 5-6 (alterations
supplied) (internal citations to the record omitted).
33

Id. at 6 (alterations supplied) (internal citations to the record omitted).

34

Id. at 6-7.

35

Id. at 8.

12

approach is often referred to as the “scientific method,”—i.e., where a hypothesis is
posed, such as the cause of a disease, and through repeated testing the hypothesis is
either proven or disproven.36
Dr. Mark stated that he followed the scientific method in determining the cause
of Mrs. Bobo’s diffuse malignant mesothelioma.37 In applying that approach, Dr.
Mark followed the “Hill Model” which includes nine criteria for establishing
causation of a disease: “(1) strength of association; (2) temporality; (3) biologic
gradient; (4) consistency; (5) specificity; (6) biologic plausibility; (7) coherence; (8)
experimental evidence; and (9) analogy.”38
Strength of association reflects the strength of effect in a particular study.39 Dr.
Mark stated that “[i]n determining the association of diffuse malignant mesothelioma
with exposure to asbestos, the medical and scientific community universally accepts
the proposition that the overwhelming majority of diffuse malignant mesotheliomas
are caused by asbestos.”40 Specifically, he opined that more than ninety-nine percent
of diffuse malignant mesothelioma cases in the United States are caused by exposures

36

Id.

37

Id.

38

Doc. no. 125 (Expert Report and Declaration of Eugene Mark, M.D.), at 8.

39

Id.

40

Id. (alteration supplied).

13

to asbestos.41 Because the association between inhalation of asbestos dust and diffuse
malignant mesothelioma is so strong, he reported that “proof of significant exposures
is proof of specific causation.”42

Further, Dr. Mark noted that studies have

demonstrated that individuals exposed to asbestos through the work clothing of
family members have contracted diffuse malignant mesothelioma.43
Temporality considers whether “the cause precede[d] the effect.”44 Dr. Mark
found this criteria satisfied, because malignant mesothelioma develops after exposure
to asbestos.45 As further proof of temporality, Dr. Mark noted that the disease did not
exist prior to the commercial use of asbestos.46
Biologic gradient concerns “the existence of a dose-response relationship for
the proposed association.”47 In Dr. Mark’s opinion, diffuse malignant mesothelioma
is a dose-response disease—i.e., “the more someone is exposed to and thereby
breathes asbestos, the greater his risk for developing diffuse malignant
mesothelioma.”48 Dr. Mark described the cumulative effect of the inhalation of
41

Id. at 9.

42

Id.

43

Id. at 8.

44

Doc. no. 125 (Expert Report and Declaration of Eugene Mark, M.D.), at 8 (alteration
supplied).
45

Id.

46

Id.

47

Id.

48

Id. at 10.

14

asbestos fibers as follows:
The cumulative exposure that a diffuse malignant mesothelioma
patient has received in his/her lifetime has impacted the lungs, and
created a sequential series of cellular changes that eventuate in the
diffuse malignant mesothelioma. This process takes place as fibers
inhaled into the lungs are transported through the lung and genetic
changes occur. Eventually in a person who develops diffuse malignant
mesothelioma, there will be a conversion to a malignant phenotype,
which then eventually grows into a tumor that presents clinically as a
diffuse malignant mesothelioma.
Some asbestos fibers inhaled may be removed by the mucociliary
escalator, some fibers will be deposited in the alveolar spaces, and some
may be taken up by macrophages. Other fibers may work their way into
the interstitium or make their way to the lymph nodes, pleura, or
elsewhere in the body.
The more significant exposures to asbestos that a person has, the
greater his/her chance of developing diffuse malignant mesothelioma,
and all of these exposures contribute to the development of the disease.49
Consistency considers whether the association is repeatedly observed, even
under varying circumstances.50 Dr. Mark opined that diffuse malignant mesothelioma
has developed following exposures to asbestos under a multitude of circumstances,
including occupational, paraoccupational, and occult exposures.51
Specificity requires each cause to have a single effect.52

49

Id. at 10-11.

50

Doc. no. 125 (Expert Report and Declaration of Eugene Mark, M.D.), at 8.

51

Id. at 8-9.

52

Id. at 9.

15

Dr. Mark

acknowledged that this criteria is difficult to determine, because environmental
carcinogens such as asbestos, can lead to many effects, including pleural plaques,
lung cancer, and diffuse malignant mesothelioma.53
Biologic plausibility requires consideration of whether the cause produces an
effect on the molecular level.54 Dr. Mark opined that “asbestos fibers penetrate
mesothelial cells, enter the nucleus and induce abnormal chromosome formation [by]
dividing cells[,]” which is the type of molecular change known to produce cancers.55
Coherence considers “whether the association is consistent with what is known
about the disease.”56 Dr. Mark stated that the medical and scientific communities
universally accept the idea that diffuse malignant mesothelioma is caused by asbestos
exposure.57
Experimental evidence includes laboratory, animal, and observational
pathology studies.58 Dr. Mark reported that animal studies consistently show that
exposure to asbestos, either through inhalation or injection, results in an increased
number of diffuse malignant mesothelioma cases.59
53

Id.

54

Id.

55

Id. (alterations supplied).

56

Doc. no. 125 (Expert Report and Declaration of Eugene Mark, M.D.), at 9.

57

Id.

58

Id.

59

Id.

16

“Analogy is when one method of causing disease is analogized to another
known method of causing a similar disease.”60 Dr. Mark analogized the inhalation
of asbestos fibers to the inhalation of cigarette smoke.61
d.

Specific causation opinions

Dr. Mark then considered whether Barbara Bobo was exposed to asbestos at
a level where diseases, such as mesothelioma, have previously occurred.62 In making
that determination, he examined whether Barbara Bobo’s exposures were similar to
“exposures that have been documented to cause diffuse malignant mesothelioma in
others . . . .”63
Dr. Mark began this discussion by stating that “[i]t is generally accepted in the
scientific community that there is no known occupational or para-occupational level
of asbestos exposure which has been shown not to contribute to the development of
diffuse malignant mesothelioma.”64 Indeed, cases have been reported in which the
individual was only exposed to low levels of asbestos.65 Therefore, Dr. Mark
concluded that there is no known threshold or safe level of asbestos exposure, and

60

Id.

61

Id.

62

Doc. no. 125 (Expert Report and Declaration of Eugene Mark, M.D.), at 10-21.

63

Id. at 10 (internal citation omitted).

64

Id. at 15 (alteration supplied).

65

Id.

17

that “a documented history of brief or low level exposure is sufficient to consider a
mesothelioma as asbestos induced.”66 In support of this conclusion, Dr. Mark relied
on more than thirty different studies and documents, including the generally accepted
attribution criteria of the Helsinki Report.67
Therefore, Dr. Mark opined that “it is the totality of significant exposures to
asbestos that is the cause of the disease.”68 In addition, because diffuse malignant
mesothelioma is a dose-response disease, there is an inverse relationship between the
amount of asbestos inhaled and the time period in which mesothelioma will develop.69
Thus, as the level of exposure increases, the latency period decreases.70
In light of the foregoing, Dr. Mark opined that:
As each significant exposure to asbestos contributes to the total
amount of asbestos that is inhaled, and in so doing shortens the
necessary period for asbestos disease to develop, each significant
exposure to asbestos is therefore a substantial contributing factor in the
development of the diffuse malignant mesothelioma that actually
occurred, when it occurred, in a given patient.71

66

Id.

67

Id. at 15-20. The Helsinki Consensus Report was published as a result of an international
meeting regarding asbestos, asbestosis, and cancer, which took place in Helsinki, Finland in 1997.
Id. at 17, n.3. The meeting was attended by nineteen individuals, including pathologists,
radiologists, occupational and pulmonary physicians, epidemiologists, toxicologists, industrial
hygenists, and clinical and laboratory scientists specializing in tissue fiber analysis. Id.
68

Doc. no. 125 (Expert Report and Declaration of Eugene Mark, M.D.), at 26.

69

Id.

70

Id.

71

Id.

18

In applying that rationale to Barbara Bobo’s case, Dr. Mark concluded that she
had a cumulative asbestos exposure that was substantial and in the range of exposures
shown in the cited literature to cause diffuse malignant mesothelioma.72 Therefore,
Dr. Mark ultimately found that “with a reasonable degree of medical certainty [] Mrs.
Bobo’s exposure to asbestos fibers brought home on her husband’s clothing while he
worked at TVA was a substantial contributing factor and a medical cause in the
development of her diffuse malignant mesothelioma of the pleura.”73
3.

Analysis

TVA raised two challenges to this court’s consideration of Dr. Mark’s opinion
testimony when ruling upon its motion for summary judgment, as well as its
admission at trial, in the event summary judgment should be denied. TVA first
contends that Dr. Mark should be precluded from offering what it claimed to be
“scientifically unreliable” testimony that any and every exposure to asbestos was “a
substantial contributing factor in causing Barbara Bobo’s diffuse malignant
mesothelioma.”74 TVA also argues that Dr. Mark’s testimony should be excluded,
because he “ha[s] no reliable scientific studies to support [his] opinions.”75
72

Id.

73

Id. at 27.

74

Doc. no. 130 (Brief in Support of TVA’s Motion to Exclude the Specific Causation
Opinions of Doctors Wulsin and Mark), at 5-6.
75

Id. at 14 (alterations supplied).

19

In response, plaintiffs contend that Dr. Mark has not, and will not, testify that
“every exposure” or a “single fiber” causes mesothelioma.76 Instead, plaintiffs argue
that Dr. Mark’s opinion was that each of Barbara Bobo’s “significant” exposures to
asbestos, which occurred prior to the development of her mesothelioma, including
those significant exposures arising from laundering her husband’s work clothes, was
a substantial contributing factor in the development of her disease.77 Plaintiffs further
contend that Dr. Mark “relied on numerous studies regarding the amount of exposure
measured from laundering asbestos-laden clothing, studies and case reports
documenting the excess risk of mesothelioma from such household exposure, and
epidemiological studies demonstrating that relatively low cumulative exposure levels
have been shown to cause mesothelioma.”78
Upon consideration, the court agrees with plaintiffs’ position that Dr. Mark did
not opine that every asbestos fiber inhaled causes mesothelioma, or that the inhalation
of a single asbestos fiber was sufficient to cause mesothelioma. Instead, based upon
a review of the report, the court concludes that Dr. Mark’s opinion, in sum, is that
each “significant” exposure to asbestos constitutes a substantial contributing factor
to the development of diffuse malignant mesothelioma.
76

Dr. Mark defined

Doc. no. 133 (Plaintiffs’ Memorandum in Opposition to TVA’s Motion to Exclude the
Specific Causation Opinions of Doctors Wulsin and Mark), at 1.
77

Id.

78

Id. at 25.

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“significant” exposures as the type of exposures which have been proven by science
to cause mesothelioma, including those rising to the level of occupational or paraoccupational exposures. In Dr. Mark’s opinion, each of those “significant” exposures
contributes to the total dose of asbestos fibers that causes diffuse malignant
mesothelioma in a given patient and, therefore, shortens the period of time necessary
for the disease to develop. Therefore, Dr. Mark concluded that each significant
exposure to asbestos is a substantial contributing factor to the development of the
disease that actually occurred, when it occurred.
In addition, both the former Fifth Circuit and the Alabama Supreme Court have
accepted expert testimony that each exposure to asbestos can contribute to the
development of asbestos-related diseases. See Borel v. Fibreboard Paper Products
Corp., 493 F.2d 1076, 1083 (5th Cir. 1973), (“[T]he effect of the disease may be
cumulative since each exposure to asbestos dust can result in additional tissue
changes.”) (alteration supplied);79 Sheffield v. Owens-Corning Fiberglass, 595 So. 2d
443, 456 (Ala. 1992) (holding that a jury question existed regarding causation
because of the plaintiff’s expert’s opinion that each exposure to asbestos was
causative).

79

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.

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Further, the court does not find Dr. Mark’s opinions regarding the cumulative
nature of asbestos diseases and the effect that each significant exposure of asbestos
has on the development of such diseases to be inherently unreliable. Indeed, Dr.
Mark not only provided an extensive summary of both James and Barbara Bobo’s
exposures to asbestos as a result of Mr. Bobo’s employment with TVA, but also
ample citations to scientific literature and studies to support each of the underlying
bases to his opinion. In addition, Dr. Mark devoted an entire section of his report to
scientific studies regarding the risks of household exposures to asbestos from
laundering clothing laden with asbestos.

Dr. Mark also relied on numerous

epidemiological studies finding that even relatively low cumulative exposures to
asbestos can cause mesothelioma.
Based on the foregoing, the court will not exclude Dr. Mark’s opinion
testimony on the grounds that his opinion is inherently unreliable and not supported
by scientific evidence. Therefore, any remaining objections that TVA has regarding
Dr. Mark’s methodology and resulting opinion are best viewed as cross-examination
material that may affect the weight to be accorded the testimony by the finders of fact,
but not its admissibility. As the Eleventh Circuit stated in Quiet Technology DC-8,
Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333 (11th Cir. 2003):
In the end, although “[r]ulings on admissibility under Daubert
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inherently require the trial court to conduct an exacting analysis of the
proffered expert’s methodology,” McCorvey [v. Baxter Healthcare
Corp.,] 298 F.3d [1253,] 1256 [(11th Cir. 2002)], it is not the role of the
district court to make ultimate conclusions as to the persuasiveness of
the proffered evidence. Indeed, as we said in Maiz [v. Virani, 253 F.3d
641 (11th Cir. 2001)], “[a] district court’s gatekeeper role under Daubert
‘is not intended to supplant the adversary system or the role of the
jury.’” 253 F.3d at 666 (quoting Allison v. McGhan, 184 F.3d 1300,
1311 (11th Cir. 1999)). Quite the contrary, “[v]igorous crossexamination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596,
113 S. Ct. at 2798 . . . .
Id. at 1341 (first, sixth and seventh alterations in original, all other alterations
supplied).
III. CONCLUSION
In accordance with the foregoing, TVA’s motion to exclude the specific
causation opinion of Dr. Victoria Wulsin is MOOT, and TVA’s motion to exclude the
specific causation opinion of Dr. Eugene Mark is DENIED.
DONE and ORDERED this 25th day of August, 2014.

______________________________
United States District Judge

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