Bell v. ABB Group, Inc. et al
Filing
348
ORDER denying 255 Motion in Limine to Exclude the Testimony of Matthew A. Vuskovich. Signed by Judge Staci M. Yandle on 9/2/2015. (rlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MRS. SHARON BELL, Executor of the Estate
of MR. RICHARD W. BELL, Deceased,
Plaintiff,
Case No. 13-cv-1338-SMY-SCW
vs.
ABB GROUP, INC., et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on Defendant General Electric Company’s Motion in
Limine to Exclude the Testimony of Matthew A. Vuskovich, M.D., M.S.P.H. (Doc. 255) in
which Defendant John Crane, Inc. joined (Doc. 270). Defendants contend that portions of Dr.
Vuskovich’s testimony should be excluded under Daubert v. Merrell Dow Pharm., Inc. 509 U.S.
579 (1993) because Dr. Vuskovich is not qualified to render an expert opinion, his testimony is
not sufficiently reliable, and his opinions are based on an “every exposure” theory which is not
accepted by the scientific community or federal courts. Plaintiff filed a timely Response (Doc.
282). For the following reasons, Defendants’ Motion is DENIED.
Defendants’ Motion is subject to the liberal standards embodied in Federal Rule of
Evidence 702 (see United States v. Hall, 165 F.3d 1095, 1106 (7th Cir. 1999)) and Daubert, in
which the Supreme Court established the test for evaluating the reliability of expert testimony.
See Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013) (Daubert “remains the
gold standard for evaluating the reliability of expert testimony.”).
The Seventh Circuit’s Opinion in Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000)
provides the framework for analyzing Defendants’ first argument for the exclusion of Dr.
Vuskovich’s testimony. To determine if an expert is qualified to testify on a particular matter, a
court should “consider a proposed expert’s full range of practical experience as well as academic
or technical training.” Smith, 215 F.3d at 718. Generalized knowledge within an area is not
generally enough to qualify an expert:
[A]n expert’s qualifications must be within the same technical area as the
subject matter of the expert’s testimony; in other words, a person with
expertise may only testify as to matters within that person’s expertise.
Generalized knowledge of a particular subject will not necessarily enable
an expert to testify as to a specific subset of the general field of the
expert’s knowledge.
Martinez v. Sakurai Graphic Sys. Corp., No. 04 C 1274, 2007 WL 2570362, at * 2 (N.D. Ill.
Aug. 30, 2007) (citing O’Conner v. Commonwealth Edison Co., 807 F. Supp. 1376, 1390 (C.D.
Ill. 1992), aff’d, 13 F.3d 1090 (7th Cir. 1994)).
Defendants argue that, because Dr. Vuskovich is not a radiologist or pulmonologist and is
unpublished in the field of asbestos, he should not be allowed to give expert testimony in this
case (Doc. 255, p. 7). The Court finds this argument unpersuasive. According to Dr.
Vuskovich’s Curriculum Vita, he is a medical doctor licensed (at the time of the CV) in five
states and board certified in Occupational Medicine (Doc. 282-2, p. 3-5). He is certified as a B
Reader by the National Institute of Occupational Safety and Health in the Division of
Respiratory Disease Studies, certified as a medical review officer by the American Association
of Medical Review Officers and has served as a B-Reader Panel Member for the Kentucky Labor
Cabinet Department of Workers’ Claims. Id at p. 5-6. He has served as an Assistant Professor
in University of South Florida’s College of Public Health and Occupational Medicine Residency
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Program. Id at p. 3-4. He has read x-rays for asbestos and black lung evaluations almost daily
since 2006 (Doc. 282-3, p. 3).
Having considered his full range of practical experience as well as his academic and
technical training, the Court finds Dr. Vuskovich qualified to render an expert opinion as to Mr.
Bell’s diagnosis and causation. His qualifications are within the same technical area as the
subject matter of his testimony. The fact that Dr. Vuskovich is not a radiologist or
pulmonologist does not render him disqualified.
Turning to the reliability of Dr. Vuskovich’s report, Defendants contend that his opinions
are not based upon sufficient facts or data and are therefore scientifically unsupported and
unreliable. The Court disagrees. In Daubert, the Supreme Court held that Federal Rule of
Evidence 702 did not incorporate the “general acceptance” test set forth in Frye v. United States,
54 App. D.C. 46 (D.C. Cir. 1923). Instead, the Court held that for scientific evidence to be
admissible, a District Court must find it both relevant and reliable; it must be scientific
knowledge grounded “in the methods and procedures of science” and consist of more than
“subjective belief or unsupported speculation.” Daubert, 509 U.S. at 589-90.
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 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.
Fed. R. Evid. 702.
District judges have considerable discretion in deciding whether particular expert
testimony is reliable. Manpower, Inc., 732 F.3d at 806 (citing Kumho Tire Co., Ltd. v.
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Carmichael, 526 U.S. 137, 152 (1999)). Reliability is primarily a question of the validity of an
expert’s methodology, not the quality of his data or of the conclusions produced. Id. A district
judge who unduly scrutinizes the quality of the expert’s data and conclusions, rather than the
reliability of the methodology he employed, usurps the role of the jury. Stollings v. Ryobi
Techs., Inc., 725 F.3d 753, 766 (7th Cir. 2013); Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th
Cir. 2000).
Dr. Vuskovich reviewed Mr. Bell’s occupational and medical records and obtained a
history of his employment and military service for potential exposure to asbestos and other
pulmonary irritants (Doc. 282-1, p. 3).
He examined Mr. Bell’s lung biopsy records and
pathology report (Id). He examined smoking history and interpreted a chest x-ray according to
ILP B-reader standards (Id at p. 4). Considering the scope of Dr. Vuskovich’s anticipated
testimony, the Court finds the information on which his report and opinions are based sufficient.
Defendants also challenge the theoretical basis for Dr. Vuskovich’s opinion. When
evaluating expert testimony under Rule 702, the preliminary question is “whether the reasoning
or methodology underlying the testimony is scientifically valid and . . . whether that reasoning
or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93.
Considerations include whether a theory or technique is capable of being or has been tested,
whether it has been subjected to peer review and publication, its known or potential rate of error
when applied, and whether it has gained general acceptance. Id. at 593-94; accord Conn, 297
F.3d at 555.
Rule 702’s advisory committee’s note suggests courts also consider:
(5) whether “maintenance standards and controls” exist; (6) whether the
testimony relates to “matters growing naturally and directly out of
research they have conducted independent of the litigation,” or developed
“expressly for purposes of testifying”; (7) “[w]hether the expert has
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unjustifiably extrapolated from an accepted premise to an unfounded
conclusion”; (8) “[w]hether the expert has adequately accounted for
obvious alternative explanations”; (9) “[w]hether the expert is being as
careful as he would be in his regular professional work outside his paid
litigation consulting”; and (10) “[w]hether 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 (2000 amends.); accord Fuesting v. Zimmer, Inc.,
421 F.3d 528, 534-35 (7th Cir. 2005), vacated in part on other grounds, 448 F.3d 936 (7th Cir.
2006), cert. denied, 127 S. Ct. 1151 (2007).
In this case, Plaintiff retained Dr. Vuskovich to establish that Mr. Bell’s exposure to
asbestos was a cause of his asbestosis and lung cancer (Doc. 282, p.1). Defendants contend that
Dr. Vuskovich relies on an “every exposure” theory to support his finding of asbestosis and
argue that this theory does not meet the “substantial factor” requirement and has been rejected by
courts across the country (Doc. 255, p. 10). It is true that the “every exposure” theory has been
rejected by some federal and state courts as unscientific and unsubstantiated by evidence. See,
e.g., Lindstrom v. A–C Prods. Liab. Trust, 424 F.3d 488, 492–93 (6th Cir. 2005); Smith v. Ford
Motor Co., 2013 WL 214378, at *1–3 (D.Utah Jan. 18, 2014); Betz v. Pneumo Abex, LLC, 44
A.3d 27, 56–57 (Pa.2012) (“[W]e do not believe that it is a viable solution to indulge in a fiction
that each and every exposure to asbestos, no matter how minimal in relation to other exposures,
implicates a fact issue concerning substantial-factor causation[.]”). Other courts, however, have
distinguished testimony suggesting that a de minimus exposure to asbestos could cause
mesothelioma (rejected by the cases cited above) from testimony that each significant exposure
to asbestos could be a cause. See, e.g., Dixon v. Ford Motor Co., 70 A.3d 328 (Md. App. Ct. July
25, 2013) (explaining that expert’s “opinion was based on evidence of repeated exposures ... to
high-level doses of asbestos fibers ... and must be viewed in that light”). See also In re Asbestos
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Prods. Liab. Litig., 2011 WL 605801, at *7 (E.D.Pa. Feb. 16, 2011) (allowing opinion that “any
exposure to asbestos above ‘background’ [exceeding ambient levels] is a significant contributing
factor to the development of mesothelioma”).
Illinois law applies a “frequency, regularity and proximity rule” to establish causation in
asbestos cases. Thacker v. UNR Indus., Inc., 603 N.E.2d 449, 459 (1992) (“we agree with the
appellate court that in order for the plaintiff to prevail on the causation issue there must be some
evidence that the defendant's asbestos was put to ‘frequent’ use… in ‘proximity’ to where the
decedent ‘regularly’ worked.”). While evidence of “fiber drift” alone cannot support an
inference of causation, “the fiber-drift theory does not contravene the substantial-factor test for
causation and the amount of evidence needed to establish the regularity and frequency of
exposure will differ from case to case.” Wehmeier v. UNR Indus., Inc., 572 N.E.2d 320, 337 (Ill.
App. 1991).
The Seventh Circuit in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992) cited
Wehmeier stating, “mesothelioma can result from minor exposures to asbestos products—a fact
made evident by the medical testimony, OSHA regulations, and EPA regulations that are part of
the record in this case.” 980 F.2d at 421 (quoting Wehmeier, 572 N.E.2d at 337). The Seventh
Circuit also quoted Wehmeier in holding, “[w]here there is competent evidence that one or a de
minimis number of asbestos fibers can cause injury, a jury may conclude the fibers were a
substantial factor in causing a plaintiff's injury.” Id. 1 Thus, even if Dr. Vuskovich relies on an
“every exposure” theory, such reliance would not render his testimony inadmissible.
1
The Seventh Circuit has held similarly in the context of benzene exposure. In Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426,
429 (7th Cir. 2013), the district court had excluded an expert’s medical causation testimony because the doctor opined that
“there is no threshold” for safe exposure to benzene and failed to rule out the plaintiff’s history of smoking as a potential cause
of his leukemia. The Seventh Circuit explained that the expert should not have been excluded because “as a careful scientist
[he] reserve[ed] the possibility that even less exposure might be dangerous,” and “there is no rule requiring the exclusion of
expert testimony just because the expert digresses into a collateral issue to explain where the frontier of research lies.” Id. at
432.
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Dr. Vuskovich does state that asbestosis is a cumulative disease, which “means that every
exposure to asbestos contributes to the interstitial scarring in the lungs, which is asbestosis”
(Doc. 282-1, p. 6). He also states, “it is not possible to say, within a reasonable degree of
medical certainty, what the threshold exposure requirement is for asbestosis” (Id). His opinion,
however, takes into account Mr. Bell’s occupational and military history and his ultimate
conclusion is that Plaintiff’s exposures were not trivial. The Court finds nothing scientifically
invalid about Dr. Vuskovich’s theory under Daubert, nor any unjustifiable extrapolation as
cautioned against by the Rule 702 advisory committee.
Accordingly, Defendants’ Motion in Limine is DENIED.
IT IS SO ORDERED.
DATE: September 2, 2015
s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE
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