Hostetler et al v. Johnson Controls Inc et al

Filing 405

OPINION AND ORDER granting #394 Motion to exclude these three experts' opinions that the Plaintiffs are at an increased risk of adverse health effects. Signed by Chief Judge Jon E DeGuilio on 09/16/2020. (Copy mailed to pro se party) (jat)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
AMOS HOSTETLER, et al.,
Plaintiffs,
v.
JOHNSON CONTROLS, INC., et al.,
Defendants.

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Case No. 3:15-cv-226 JD

OPINION AND ORDER
In this order, the Court addresses the motion to strike the Plaintiffs’ expert opinions that
they each face increased health risks due to exposures to contamination from the former Johnson
Controls property. The Plaintiffs are five individuals who have lived in one or more homes near
the site. They allege that during that time, they have been exposed to various contaminants that
originated at the site, including TCE and PCE that migrated through the ground and produced
vapors in their indoor air, and asbestos fibers that were released during demolition at the site and
blew to their homes.
The Plaintiffs do not claim to have experienced any effects from those exposures to date.
However, they offer opinions by three experts that they face increased risks of experiencing
adverse health effects in the future as a result of those exposures. Dr. Orris is a medical doctor
who addressed the cancer and non-cancer effects of TCE. Dr. Gilbert is an immunotoxicologist
who addressed TCE’s effect on the immune system. And Dr. Spaeth is a medical doctor who
addressed the effects of TCE, PCE, and asbestos. All three opine that the five Plaintiffs are each
at an increased risk of various health effects due to their exposures. Johnson Controls argues that
those opinions fail to satisfy Rule 702, primarily because the experts fail to bridge the gap
between the substances’ ability to cause adverse effects in general, under some conditions, to a

risk posed to these five individuals given their particular exposures. The Court agrees and grants
the motion.
A.

Standard of Review
Rule 702 governs the admission of testimony by expert witnesses. Under that rule, a

witness “who is qualified as an expert by knowledge, skill, experience, training, or education”
may offer an opinion if the following criteria are met:
(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.
A court has a gatekeeping role to ensure that expert testimony meets these criteria.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); C.W. ex rel. Wood v. Textron, Inc.,
807 F.3d 827, 834–35 (7th Cir. 2015). The proponent of the expert testimony bears the burden of
demonstrating that the testimony meets each of those elements. Varlen Corp. v. Liberty Mut. Ins.
Co., 924 F.3d 456, 459 (7th Cir. 2019). However, a court does not assess “‘the ultimate
correctness of the expert’s conclusions.’” Textron, 807 F.3d at 834 (quoting Schultz v. Akzo
Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)). Rather, a court must focus “solely on
principles and methodology, not on the conclusions they generate.” Schultz, 721 F.3d at 432
(quoting Daubert, 509 U.S. at 595). “So long as the principles and methodology reflect reliable
scientific practice, ‘vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.’” Id. (quoting Daubert, 509 U.S. at 596).
2

B.

Analysis
The Plaintiffs offer three expert opinions that their exposures increased their risk of

experiencing negative health effects in the future. Johnson Controls moved to strike each of
those opinions. In their response, the Plaintiffs reframe and narrow the nature of their claims and
the experts’ role in relation to those claims. To deflect Johnson Controls’ arguments that their
experts failed to reliably address causation, the Plaintiffs disavow that their experts have offered
opinions on general or specific causation, and argue that those subjects are not necessary to their
claims for nuisance, trespass, or negligent infliction of emotional distress.
Even under the Plaintiffs’ description of those claims, though, it is hard to see how these
experts’ opinions are relevant to some of them. The Plaintiffs assert, for example, that the
opinions support their claim for trespass, which they argue requires only an unauthorized entry
onto land, not any actual physical injury. Yet these experts don’t opine whether the substances
entered the Plaintiffs’ properties; they opine that the Plaintiffs face an increased risk of adverse
health effects due to their exposures to contamination, which the experts rely on other experts to
establish. The Plaintiffs likewise argue that their emotional-distress claim requires only some
sort of physical contact with a contaminant (or even just with a medium that has contained a
contaminant), and that these experts’ opinions satisfy that element. But again, the Plaintiffs fail
to show how their experts’ opinions that they face future health risks pertain to whether they
experienced such a physical contact; that’s a question of exposure, not risk of injury.
Regardless of how the Plaintiffs characterize their legal claims, that doesn’t change the
opinions their experts actually offered. The Court must analyze those opinions, which are that the
Plaintiffs each face an increased risk of adverse health effects due to their exposures. And those
opinions each entail at least a general causation opinion: in order for the Plaintiffs to face an
increased risk of developing adverse health effects, the exposures they experienced must be
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capable of causing those effects. The experts must therefore have a reliable basis upon which to
opine that each individual plaintiff’s exposure places that individual at an increased risk.
On that topic, Johnson Controls argues that none of the experts adequately connected the
dots from the substances’ ability to cause certain effects given some amount of exposure, to the
Plaintiffs’ risk of experiencing those effects given their particular exposures. Much of the
experts’ reports discusses the effects that the substances can cause under some exposure
conditions, as shown by various studies and other evidence. When it comes to translating those
possible effects to the Plaintiffs’ risks, though, the reports rely almost exclusively on regulatory
values. Because contamination has been measured or estimated in the Plaintiffs’ homes in
amounts that exceed those levels, the experts opine that the Plaintiffs all face increased health
risks from their exposures.
This approach poses multiple problems that fatally undermine the reliability of these
analyses. First, courts routinely condemn experts’ reliance on regulatory values when attempting
to evaluate the risk posed to a particular individual: “exceedance of government regulation, as
we’ve held before, does not by itself prove causation.” C.W. ex rel. Wood v. Textron, Inc., 807
F.3d 827, 838 (7th Cir. 2015); see also Cunningham v. Masterwear Corp., 569 F.3d 673, 675
(7th Cir. 2009); C.W. v. Textron, Inc., 1 No. 3:10-cv-87, 2014 WL 1047940, at *5 (N.D. Ind. Mar.
17, 2014) (“[Reliance on regulatory standards] alone is an improper basis for an expert opinion,
for mere exposure to toxins in excess of regulatory levels is insufficient to establish causation.”).
As Judge Simon discussed in Textron, “The rationale for this is understandable: ‘regulatory

1

In Textron, the experts’ opinions included that the plaintiffs’ exposures “presented[ed] an
unacceptable risk of cancer in the future” and put them “at an increased risk of cancer.” 2014
WL 1047940, at *4, 11. The Plaintiffs’ attempt to distinguish that case on the basis that their
experts here address only the risk of future injury, not the cause of a manifested injury, thus falls
flat.
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agencies are charged with protecting public health and thus reasonably employ a lower threshold
of proof in promulgating their regulations than is used in tort cases.’” Textron, 2014 WL
1047940, at *5 (quoting Baker v. Chevron USA, Inc., 680 F. Supp. 2d 865, 880 (S.D. Ohio
2010)).
When faced with uncertainties (like how an effect observed in animals might translate to
humans), agencies draw conservative assumptions to ensure that the levels they adopt protect the
health of the public at large. See Bernard D. Goldstein, Reference Guide on Toxicology, in Fed.
Judicial Ctr., Reference Manual on Scientific Evidence 633, 649–50 (3d ed. 2011) (“Because of
their use of appropriately prudent assumptions in areas of uncertainty and their use of default
assumptions when there are limited data, risk assessments often intentionally encompass the
upper range of possible risks.”). [See also DE 394-17 p. 75 (“ATSDR uses a conservative (i.e.,
protective) approach to address these uncertainties consistent with the public health principle of
prevention. . . . In the absence of evidence to the contrary, ATSDR assumes that humans are
more sensitive than animals to the effects of hazardous substances that certain persons may be
particularly sensitive. Thus the resulting MRL [minimal risk level] may be as much as a
hundredfold below levels shown to be nontoxic in laboratory animals.” (quoting Minimal Risk
Levels (MRLs) – For Professionals, https://www.atsdr.cdc.gov/mrls/index.asp)), p. 76 (“Because
of conservative models used to derive [cancer slope factors] and IURs, using this approach
provides a theoretical estimate of risk; the true or actual risk is unknown and could be as low as
zero.”) (alteration in original)]. But plaintiffs who bear the burden of proof must confront those
uncertainties and offer a reliable basis to conclude—not merely assume—that the exposures in
question actually pose a risk to their health.

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Regulatory levels are not meant to represent thresholds for adverse effects, either, but to
reflect concentrations known to be safe even for the most at-risk populations, with margins built
in for safety. 2 That the most at-risk population would not face an increased risk even with a
lifetime of exposure to a given concentration (which is what the Reference Concentration
reflects, for example), does not mean that a particular individual would face an increased risk
from any exposure above that concentration. While it is appropriate for regulatory agencies to
rely on those values in ensuring the safety of populations as a whole, experts who seek to
determine whether a particular individual faces an increased risk from a particular exposure must
do more than merely compare an exposure to a regulatory value. See Textron, 807 F.3d at 838;
Cunningham, 569 F.3d at 675. 3 Courts thus routinely hold that “to the extent that [an expert’s]
opinions are based on exceedance of regulatory standards, they are not admissible.” Textron,
2014 WL 1047940, at *14. Even though Johnson Controls heavily relied on this point in its
motion, and even though the Plaintiffs argue that their experts’ opinions are reliable based on
their use of regulatory values, the Plaintiffs failed to meaningfully argue otherwise in their
response.

2

Even one of the sources Dr. Gilbert relied on makes this abundantly clear: “The EPA/MassDEP
exposure guideline of 2 µg/m3 is set well below levels expected to result in health effects and is
designed to protect the most sensitive individuals.” Trichloroethylene (TCE) in indoor air,
https://www.mass.gov/service-details/trichloroethylene-tce-in-indoor-air (last visited Sept. 7,
2020) (cited at DE 394-4 p. 18).
3
See also Reference Guide on Toxicology, p. 665–66 (“Particularly problematic are
generalizations made in personal injury litigation from regulatory positions. Regulatory
standards are set for purposes far different than determining the preponderance of evidence in a
toxic tort case. . . . [I]t must be recognized that there is a great deal of variability in the extent of
evidence required to support different regulations. . . . In addition, regulatory standards
traditionally include protective factors to reasonably ensure that susceptible individuals are not
put at risk. Furthermore, standards often are based on the risk that results from lifetime exposure.
Accordingly, the mere fact that an individual has been exposed to a level above a standard does
not necessarily mean that an adverse effect has occurred.”).
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Even if regulatory values could be used to assess individual risk, the experts would still
have to reliably apply those levels to a particular individual’s exposure in order to offer opinions
about whether that individual faces an increased risk. Regulatory values generally assume
lifetime exposure. A Reference Concentration, for example, assumes that an individual is
continuously exposed to a given concentration every hour of the day, every day of the year, for
70 years. [DE 394-17 p. 73; 394-4 p. 20]. None of the Plaintiffs were exposed for that duration.
Yet, none of the experts offered any analysis to extrapolate those values to the Plaintiffs’
exposures. More, the experts appeared under the misimpression that Dr. Keramida had
conducted a dose-and-duration analysis for the Plaintiffs’ exposures, when she did no such thing.
Instead, her opinion estimated only the indoor air concentrations in the Plaintiffs’ homes.
Though she noted the number of years each Plaintiff lived in each home, neither she nor any of
these experts considered the amount of time any Plaintiff spent indoors being exposed to those
concentrations during those periods, nor did they attempt to compare the resulting exposure to
any regulatory values. Without having even considered the duration of any of the Plaintiffs’
exposures, these experts were not comparing apples to apples in relying on the regulatory values.
Textron, 2014 WL 1047940, at *7 (“Ignoring the dose . . . is a critical error. This is because, as
one commentator has put it, ‘the dose makes the poison.’”).
An expert cannot avoid that problem by asserting that there is no safe level of exposure,
either. As the Seventh Circuit recently observed, “more than thirty other federal courts and state
courts have held that this cumulative/‘any exposure’ theory is not reliable.” Krik v. Exxon Mobil
Corp., 870 F.3d 669, 677 (7th Cir. 2017); see also Moeller v. Garlock Sealing Techs., LLC, 660
F.3d 950, 955 (6th Cir. 2011). First, to the extent these assertions rest on the lack of scientific
proof that a de minimis exposure cannot cause cancer, they get the burden of proof backwards.

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[See DE 394-2 p. 12 (Dr. Orris: “[T]here is no data to support a level below which no health
risks are expected.”)]. An inability to prove that a particular exposure is “safe” is not the same as
proof that exposure at that level has a causal connection to adverse effects. Anderson v. Ford
Motor Co., 950 F. Supp. 2d 1217, 1224 (D. Utah 2013). Second, even assuming that exposure to
a single molecule of a substance may theoretically be capable of causing a cancer, the law does
not provide recovery for remote, speculative, theoretical possibilities. 4 Merely pointing to a
theoretical possibility that even the most minute exposure may be able to cause a cancer fails to
establish that a given individual has suffered a cognizable harm. See Krik, 807 F.3d at 677.
Take, for example, the Inhalation Unit Risk, on which each of the experts rely. That value
provides an estimate of the increased cancer risk from a lifetime of exposure to a given substance
at a concentration of 1 µg/m3. For PCE, that exposure is estimated (at the upper bound) to cause
0.26 cancers over a lifetime in a population of 1 million people. [DE 394-3 p. 10]. In other
words, a person with a lifetime of exposure at that level has a 99.999974 percent chance of never
getting cancer from that exposure; few things in life are as certain not to happen. An expert who
opines that an individual faces an unquantified increased risk of cancer because even the most
minute exposure is theoretically capable of causing cancer, without offering a basis upon which
to assess the magnitude of the risk, is simply not offering an opinion that is useful to the

4

It is unclear if Indiana would even recognize a claim for damages for medical monitoring based
on an increased risk of future injury. See AlliedSignal, Inc. v. Ott, 785 N.E.2d 1068, 1075 (Ind.
2003) (noting that a product liability claim does not accrue upon mere exposure to asbestos);
Allgood v. Gen’l Motors Corp., No. 102cv1077, 2005 WL 2218371, at *5–7 (S.D. Ind. Sept. 12,
2005) (concluding that Indiana law would allow recovery of medical monitoring costs for a risk
of future injury as relief on tort claims). But even the states that do allow such a claim generally
require that a plaintiff have a “significantly increased risk of contracting a serious latent disease.”
In re Marine Asbestos Cases, 265 F.3d 861, 866 (9th Cir. 2001).
8

decisional process. Krik, 870 F.3d at 677–78. And again, even though this was a principal basis
for Johnson Controls’ motion, the Plaintiffs did not meaningfully argue otherwise in response.
Dr. Orris’ report presents the clearest case of these problems. Much of his report is
devoted to discussing effects that TCE can produce under some conditions. The report offers
only cursory discussion when it comes to translating that to an increased risk for the five
Plaintiffs here, though. On that topic, all the report does is note the measured 5 or estimated levels
of TCE in the Plaintiffs’ homes, then note regulatory levels for cancer and non-cancer effects
(the Inhalation Unit Risk and Reference Concentration, respectively), and then assert without
further explanation that the Plaintiffs “are now at an increased risk of cancer and other negative
health effects due to their exposure to TCE.” [DE 394-2 p. 12–13, 16]. In other words, the only
basis Dr. Orris offers for extrapolating the Plaintiffs’ exposures to their increased risk is an
exceedance of regulatory standards. That is not a reliable methodology. Textron, 807 F.3d at 838
(“[E]xceedance of government regulation, as we’ve held before, does not by itself prove
causation. The district court did not abuse its discretion in rejecting this methodology.” (citation
omitted)).
Nor did Dr. Orris consider the amount of time any Plaintiff was exposed. His report
incorrectly asserts that “Dr. Keramida has predicted the dose and duration of TCE exposure for
each of the five Plaintiffs,” when all she did was estimate the indoor air concentrations of TCE,

5

Dr. Orris’ statement that the sampling data independently supports his opinion is also curious
and unsupported by any analysis in his report. His report notes the range of indoor air
measurements in “the Class Area,” but this is not a class action; his report is meant to address the
risks faced by the five individual plaintiffs in this suit. Some of the plaintiffs have never had
TCE detected in their homes anywhere near the regulatory levels Dr. Orris cites. For example,
Ms. Tovar’s home has had TCE detected only once out of more than a dozen tests, in an amount
of 0.18 µg/m3, over an order of magnitude below the Reference Concentration Dr. Orris relies
on. Dr. Orris’ report does not explain how that sampling data supports his opinion that Ms. Tovar
faces an increased risk of non-cancer effects.
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not their exposures to it. [DE 394-2 p. 12]. Thus, Dr. Orris did not reliably extrapolate either of
the regulatory values (both of which assume continuous exposures for a lifetime) to the
Plaintiffs’ particular exposures. The only other basis for Dr. Orris’ opinions is the assertion that
there is no safe dose for exposure to TCE, such that even the most minute exposure necessarily
places an individual at an increased risk of cancer. For the reasons already explained, that nosafe-dose opinion is not helpful in evaluating the extent to which these specific individuals have
a cognizable risk due to their specific exposures. Nor has Dr. Orris identified a reliable basis for
concluding that any exposure, no matter how small, has been shown to have a causal connection
to a detectable increase in the risk of adverse health effects. 6 The Plaintiffs therefore have not
shown that Dr. Orris’ opinions satisfy Rule 702’s reliability criteria.
Dr. Gilbert’s opinions, which focus on immunological risk from TCE, are little different.
Her report discusses at length various evidence that exposures to TCE can cause autoimmune
diseases. Her report offers no reliable basis, though, for extrapolating TCE’s ability to cause
those effects under some circumstances, to its ability to cause those effects to these Plaintiffs
under their circumstances. While she cites and discusses various studies on TCE’s ability to
cause certain effects, she never attempts to explain how any of those studies would support a
finding that these Plaintiffs are at risk of those effects given their exposures. Instead, like Dr.
Orris, the only evidence her report discusses for comparing these Plaintiffs’ exposures to a level
at which a risk occurs is regulatory levels, like the Reference Concentration and Inhalation Unit
Risk. As already discussed, those levels do not present a reliable basis for identifying an
increased risk in a particular individual. Also like Dr. Orris, Dr. Gilbert’s report never considers

6

Even the Plaintiffs’ argument in defense of this opinion states that “every exposure carries
some theoretical risk of cancer.” [DE 399 p. 26 (emphasis added)].
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the Plaintiffs’ actual exposures so as to compare them to the regulatory levels, either. The
regulatory levels thus cannot support Dr. Gilbert’s opinions for that independent reason.
The only discussion Dr. Gilbert’s report offers to address the length of the Plaintiffs’
exposures was based on the contamination at Camp Lejeune, where very heavy contamination by
TCE and other chemicals was discovered in the drinking water in the 1980s. Dr. Gilbert notes
that the Department of Veterans Affairs has stated that veterans and their families may qualify
for health benefits if they have been diagnosed with one of a number of diseases and had at least
30 days of exposure at Camp Lejeune. She asserts that this assumption of fiscal responsibility is
based on “the assumption” that even short exposures can increase health risks. [DE 394-4 p. 25].
First, though, the Plaintiffs offer no reason to believe that a legislative decision to grant health
benefits to veterans and their families is the type of evidence a toxicologist would rely on in
reaching conclusions about causation. And second, they have not shown that Dr. Gilbert reliably
extrapolated from those circumstances to any risks that may be posed here. The Camp Lejeune
contamination involved multiple different contaminants in the drinking water, whereas Dr.
Gilbert’s opinion here addresses the effect of TCE in indoor air. Dr. Gilbert’s report offers no
explanation to bridge the gap from the types and amounts of exposures there to the exposures
here.
Dr. Gilbert’s report also relies on sources of exposure that are not even present. She
writes, for example, that all five Plaintiffs face increased risk because they were exposed to high
concentrations of TCE in the soil, groundwater, and surface water. [DE 394-4 p. 22–23, 25
(“Thus, the plaintiffs were living in an area where the levels of TCE in the soil were higher than
human health guidelines for non-cancer effects; thus increasing the likelihood that they would
manifest such effects.”)]. She does not identify any evidence that any Plaintiff has been exposed

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to contamination in that manner, though. She also relies on elevated levels of TCE in the subslab soil gases. Again, however, there is no suggestion that any Plaintiff has inhaled sub-slab soil
gases; the Plaintiffs’ theory is that they breathed vapors inside their homes. 7
Dr. Gilbert also notes that one of the Plaintiffs (Ms. Null) lived in the neighborhood
before the homes were connected to municipal water lines, such that she could have been
exposed to contaminated drinking water if her well was contaminated. Her report only cites
levels of contamination of other wells some distance away, though. [DE. 394-4 p. 22]. It does not
identify the level of contamination in Ms. Null’s well that Dr. Gilbert was basing her opinion on
or how much exposure Ms. Null had to that contamination. And notably, an actual test of Ms.
Null’s well water detected no TCE within the reporting limits. [DE 394-7]. Dr. Gilbert’s report
also discusses potential impacts of exposure to multiple toxins, but her report does not appear to
rely on that analysis; it concludes that “little is known about the impact of co-exposure to TCE
and other chemicals such as PCE in humans,” and that “little is known about their combined
effects.” [DE 394-4 p. 28].
In defending Dr. Gilbert’s opinions, the Plaintiffs rely heavily on Kirk v. Schaeffler Grp.
USA, Inc., 887 F.3d 376 (8th Cir. 2018). That decision affirmed the admission of opinions by Dr.
Gilbert in another case, but that decision is of little use, as the circumstances and Dr. Gilbert’s
opinions were quite different than here. In Kirk, the plaintiff developed a rare auto-immune
disease after living in an area heavily contaminated with TCE. Dr. Gilbert opined that TCE was
capable of causing that disease, and she conducted a differential etiology and offered a specific
causation opinion that the contamination caused that disease. 887 F.3d at 390–92. But here, Dr.

7

To the extent Dr. Gilbert was suggesting that the sub-slab vapors would reach the indoor air at
an increased level, that is not a matter within her expertise.
12

Gilbert did not conduct a differential etiology and is not offering a specific causation opinion,
nor have any of the Plaintiffs manifested any disease.
Also, while Dr. Gilbert did not identify a particular amount of exposure for the plaintiff
in Kirk, that step was unnecessary to her analysis. The plaintiff had already manifested a disease.
It was also a rare disease, one that was capable of being caused by TCE, and which manifested
after exposure to high levels of contamination for many years. Those factors allowed Dr. Gilbert
to opine that the exposure caused that rare disease. Id. Here, though, none of the Plaintiffs have
manifested any illness, so Dr. Gilbert cannot rely on the illness to infer exposure to sufficient
quantities. Instead, she has to reliably connect the dots between these Plaintiffs’ exposures and
their future risks of experiencing effects that have yet to manifest themselves. As already
discussed, she has not done so. The Court therefore grants the motion to exclude Dr. Gilbert’s
opinions as well.
Dr. Spaeth’s opinions, addressing the risks posed by exposures to TCE, PCE, and
asbestos, suffer from the same shortcomings. As to TCE and PCE, his analysis parallels Dr.
Orris’ and Dr. Gilbert’s. He discusses various evidence that TCE and PCE are carcinogenic and
can have other toxic effects. But to conclude that these Plaintiffs are at risk of suffering those
effects, all he does is note various regulatory levels and then the sampling data and Dr.
Keramida’s estimates about the indoor air concentrations in the Plaintiffs’ homes. 8 Like the other
experts, he does not consider the duration of any of the Plaintiffs’ exposures so as to compare
them to the regulatory levels, either.

8

The Plaintiffs also argue based on Dr. Spaeth’s deposition testimony that he also relied on
studies of human exposures to TCE at levels comparable to the Plaintiffs’ neighborhood. His
report, however, offers no discussion of the levels of exposure in those studies or how they
compare to the exposures for these five Plaintiffs.
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Dr. Spaeth’s opinions as to asbestos suffer from an even more fundamental problem,
which is that the Plaintiffs offer no evidence whatsoever about how much asbestos any of them
were exposed to. The Plaintiffs were clear on that point in responding to the motion to strike
their exposure experts: “Rechtin and Giddens were not tasked with quantifying the amount of
asbestos released from the Site or the amount to which the Plaintiffs were exposed; instead they
confirmed that Plaintiffs were exposed to asbestos fibers from the Site.” [DE 388 p. 20 n.4].
Though Dr. Spaeth offers some discussion about how the Plaintiffs might have been exposed to
asbestos, ultimately he bases his opinion on the assumption that “their exposure was above
background.” 9 [DE 394-3 p. 23].
Since those opinions offer nothing more than that the Plaintiffs were each exposed to at
least one asbestos fiber from the site, the only basis to opine that the Plaintiffs are at increased
risk is to assert that every exposure to any single asbestos fiber increases a person’s risk. As
already discussed, that no-safe-dose opinion is not reliable and helpful in evaluating the extent to
which these Plaintiffs’ exposures put them at an increased risk. Anderson, 950 F. Supp. 2d at
1223 (excluding such an opinion where the plaintiffs’ experts were “unable to point to any
studies showing that ‘any exposure’ to asbestos above the background level of asbestos in the
ambient air is causal of mesothelioma,” but instead “base their opinion on the fact that scientists
have been unable to determine a safe level for exposure to asbestos”). That is particularly so
when asbestos is a naturally occurring substance and asbestos fibers are commonly present in the
air, as even Dr. Spaeth discusses. [DE 394-3 p. 19–20]. Dr. Spaeth’s opinions that the Plaintiffs

9

To the extent Dr. Spaeth offers his own opinion that the Plaintiffs were exposed to asbestos
(based on inappropriate demolition practices and the wind direction, among other factors) rather
than explaining his reliance on other experts for that point, that is plainly a matter outside his
expertise as a medical doctor.
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each face increased risk of health effects from TCE, PCE, and asbestos, and therefore need
ongoing medical monitoring, thus fail to satisfy Rule 702.
Because none of these experts’ opinions that the Plaintiffs each face an increased risk of
health effects satisfy Rule 702, the Court grants Johnson Controls’ motion to exclude those
opinions. It is unclear to what extent the Plaintiffs may still seek to offer these experts’
foundational opinions, such as on whether these substances can cause cancer or other effects
under some circumstances, or the regulatory standards for those substances. While that testimony
might raise issues of relevance and prejudice, as Johnson Controls alludes to in its reply, Johnson
Controls did not challenge those discussions under Rule 702’s reliability prongs. Relevance and
prejudice are best addressed when the Court can evaluate the specific testimony at issue and the
specific purpose for which it is offered, so the Court does not address those issues at this time.
C.

Conclusion
The Court grants Johnson Controls’ motion to exclude these three experts’ opinions that

the Plaintiffs are at an increased risk of adverse health effects. [DE 394].
SO ORDERED.
ENTERED: September 16, 2020
/s/ JON E. DEGUILIO
Chief Judge
United States District Court

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