Little v. Budd Company, Inc.
MEMORANDUM AND ORDER denying 97 defendant's Motion to Exclude the Testimony of Dr. Arnold Brody; granting in part and denying in part 99 defendant's Motion to Exclude the Testimony of Dr. Barry Castleman and denying as moot 101 defendant's Motion to Exclude the Testimony of Dr. Arthur Frank. Signed by District Judge Daniel D. Crabtree on 11/20/2018. (mig)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NANCY LITTLE, individually and as
personal representative of the estate of
ROBERT L. RABE,
Case No. 16-4170-DDC-KGG
THE BUDD COMPANY,
MEMORANDUM AND ORDER
Plaintiff Nancy Little brings this action individually and as the personal representative of
the estate of her father, Robert L. Rabe, against defendant The Budd Company. Plaintiff alleges
that her father was exposed to asbestos-containing pipe insulation found in passenger railcars
during his employment with the Atchison Topeka & Santa Fe Railroad (“ATSF”). She also
alleges that defendant had manufactured and sold the railcars to ATSF. This exposure, plaintiff
contends, caused her father to develop asbestos-related malignant mesothelioma, and it caused
his death on December 28, 2012.
This matter comes before the court on defendant’s motions seeking to exclude the expert
testimony offered by three of plaintiff’s expert witnesses. Defendant has filed three motions:
(1) Motion to Exclude the Testimony of Dr. Arnold Brody (Doc. 97); (2) Motion to Exclude the
Testimony of Dr. Barry Castleman (Doc. 99); and (3) Motion to Exclude the Testimony of Dr.
Arthur Frank (Doc. 101).1
Defendant’s motions ask the court to hold a Daubert hearing. Exercising its discretion, the court
denies defendant’s request for a hearing because the record submitted with the parties’ filings permits the
court to determine the relevance and reliability of the proffered expert testimony without holding a
Plaintiff has responded to defendant’s three motions. Plaintiff opposes defendant’s
motions to exclude the testimony of Dr. Arnold Brody and Dr. Castleman. Docs. 107, 109. And
thus, she asks the court to deny defendant’s motions to exclude the expert testimony of those two
witnesses. The court considers the parties’ arguments about the admissibility of those two
expert’s testimony in its analysis below. For reasons explained, the court denies defendant’s
motion to exclude the testimony of Dr. Arnold Brody. And the court grants defendant’s motion
to exclude the testimony of Dr. Castleman in part and denies it in part.
For Dr. Arthur Frank, plaintiff explains in her Response that she will not call this witness
at trial. Thus, plaintiff asserts, defendant’s motion to exclude Dr. Frank’s testimony is moot.
Because plaintiff will not offer Dr. Frank’s testimony at trial, the court denies defendant’s
Motion to Exclude the Testimony of Dr. Frank as moot.
A. Dr. Arnold Brody
Dr. Arnold Brody is a Professor Emeritus in the Pathology Department of Tulane
University Medical School. Also, he serves as an Adjunct Professor at North Carolina State
University in its Department of Molecular and Biomedical Sciences. Before he accepted the
faculty appointment in North Carolina in September 2006, Dr. Brody was a professor and the
Vice Chair of the Department of Pathology of the Tulane University Medical School. Dr. Brody
has a Bachelor of Science degree in Zoology from Colorado State University, a Master of
Science degree in Functional Vertebrate Anatomy from the University of Illinois, and a Ph.D. in
Cell Biology with a specialty in Ultrastructural Cytology from Colorado State University.
hearing. See Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000). The court
provides additional explanation for its reasoning, below. See infra Part II.
Dr. Brody has “practiced for decades in the field of biomedical sciences, focusing on the
pathobiology of several lung diseases.” Doc. 107-1 at 1 (Dr. Brody’s Expert Report ¶ 4). Since
the 1970s, Dr. Brody has “concentrated his research on how asbestos causes lung disease.” Id.
He has published more than 150 articles in peer-reviewed scientific literature about lung cell
biology, asbestos, and lung disease. Also, Dr. Brody has spoken at medical and scientific
conferences around the world about lung cell biology, asbestos, and lung disease.
In the mid-1970s, Dr. Brody worked with Dr. Chris Wagner, a prominent researcher in
asbestos disease. Dr. Wagner had developed an animal model of disease demonstrating that
rats—when exposed to asbestos—develop the same diseases that humans can develop when
exposed to asbestos. These diseases include asbestosis, lung cancer, and mesothelioma. Dr.
Brody built upon Dr. Wagner’s model. Dr. Brody’s research has shown that the cells from
which those diseases develop are the same in animals as they are in humans. His research also
has shown that inhaled asbestos fibers land in the same place in animals as they do in humans.
In his Expert Report, Dr. Brody provides general background information about asbestos
fiber types. Id. at 3 (Dr. Brody’s Expert Report ¶ 7). Also, he identifies the “four major diseases
caused by inhalation of asbestos fibers: asbestosis, pleural plaques, lung cancer, and
mesothelioma.” Id. at 4 (Dr. Brody’s Expert Report ¶ 8). Dr. Brody opines that “[a]ll of the
asbestos fiber types cause all of these four disease categories.” Id. And Dr. Brody explains that
mesothelioma occurs “when a mesothelial cell of the pleural or peritoneal surfaces develops a
sufficient number of genetic errors in a set of genes that controls cell growth,” and that “[a]ll of
the asbestos varieties induce the genetic errors described above and cause this cancer.” Id. at 10–
11 (Dr. Brody’s Expert Report ¶ 16). According to Dr. Brody, “[t]he fibers that cause
mesothelioma reach the pleural surfaces through the lymphatic pathways, and they interact with
the target cells of the mesothelial surfaces.” Id. Dr. Brody explains that “[w]hen a sufficient
number of genetic errors has accumulated in a single mesothelial cell, this cell can undergo
neoplastic transformation and grow into a deadly tumor . . . .” Id. at 11 (Dr. Brody’s Expert
Report ¶ 17). Dr. Brody opines that “[i]t typically takes many decades for a sufficient number of
mutations to occur in a single mesothelial cell because of the numerous effective defense
mechanisms that destroy genetically defective cells, thus explaining the long latencies known for
this cancer.” Id.
Dr. Brody has focused his research “specifically on the process by which asbestos fibers
cause . . . disease” such as clinical asbestosis, lung cancer, and mesothelioma. Id. at 13 (Dr.
Brody’s Expert Report ¶ 20). Dr. Brody’s Report describes how asbestos causes disease by
entering the body through a person’s air pathways, interacting with the body’s defense
mechanisms, disrupting cell division, and damaging DNA. Id. at 13–20 (Dr. Brody’s Expert
Report ¶¶ 22–43). Dr. Brody explains that “[t]he body has defense mechanisms that operate to
limit the scope of DNA damage,” but “some cells with genetic damage caused by asbestos will
replicate” and “[o]ver time, future generations of cells carrying this original genetic error may
accumulate additional genetic errors from asbestos fibers . . . .” Id. at 19 (Dr. Brody’s Expert
Report ¶¶ 41–42). Dr. Brody opines: “When a single cell accumulates enough errors, and the
number of errors required will vary by individual and according to many other factors, it begins
to divide uncontrollably, and cancer is the loss of control of cell growth.” Id. (Dr. Brody’s
Expert Report ¶ 42).
In the course of his teaching career, and while giving presentations to the scientific
community, and in court testimony about how asbestos causes disease, Dr. Brody has used a
series of slides to illustrate the process described above—i.e., how asbestos fibers cause disease.
Dr. Brody’s Expert Report describes these slides in paragraphs 23 to 42. Id. at 14–19. These
slides include: (1) a diagram of the air pathways in humans (Slide 1); (2) a picture of Dr. Brody
with his electron microscope (Slide 2); (3) an image taken with the electron microscope of the
airways in the lung (Slide 3); (4) an electron micrograph of a human bronchiole (Slide 4); (5) a
depiction of the end of an airway which opens into a gas exchange area (Slide 5); (6) a depiction
of the epithelial cells that line the airspaces in the lung (Slide 6); (7) an electron micrograph of a
macrophage picking up a pollen grain (Slide 7); (8) an electron micrograph of an asbestos fiber
bundle (Slide 8); (9) photographs of asbestos fiber deposited in a gas exchange area of a lab
animal (Slides 9 & 10); (10) an image of an asbestos fiber transported through the lymphatic
system of an lab animal (Slide 11); (11) an artist’s rendition of the lymphatic system in a human
lung (Slide 12); (12) an artist’s rendition of the lymphatic transport of an asbestos fiber in a
human lung (Slide 13); (13) an image of a section of human lung tissue with pleural plaques
(Slide 14); (14) medical illustrations and diagrams depicting asbestosis, lung cancer, and
mesothelioma (Slides 15, 16, & 17); (15) an electron microscope photo of cells, including human
DNA (Slide 18); (16) a photograph of a cell division affecting human chromosomes (Slide 19);
(17) a Karyotype rendering 23 pairs of human chromosomes (Slide 20); (18) an illustration of
normal cell division (Slide 21); (19) a photograph of a single animal chromosome dividing
abnormally in the presence of asbestos fiber (Slide 22); (20) cell division in a mesothelial cell
disrupted by asbestos (Slide 23); and (21) an artist’s rendering of the various stages of cancer
formation (Slide 24). Id.
After explaining how asbestos causes lung disease, Dr. Brody’s Expert Report concludes
with the following opinion:
The asbestos-included cancers are dose-response diseases, in that the more asbestos
a person is exposed to, the more likely that person is to develop disease. . . . As
asbestos exposures occur over time, some proportion of those fibers are retained in
the lungs and can be translocated to the various sites where the diseases develop,
and the genetic errors caused by asbestos fibers accumulate. Once a person
develops an asbestos-related cancer, it is not possible to exclude any of the person’s
above-background exposures to asbestos from the causal chain. Each and every
exposure to asbestos that an individual with mesothelioma experienced in excess
of a background level contributes to the development of the disease.
Id. at 20–21 (Dr. Brody’s Expert Report ¶ 44). Also, Dr. Brody opines that “[a]sbestos is the
only known environmental cause of mesothelioma in the United States” and “[t]he consensus
scientific opinion . . . is that no amount of exposure to asbestos above the background levels
present in ambient air has been established as too low to induce mesothelioma.” Id. at 21 (Dr.
Brody’s Expert Report ¶ 45). Dr. Brody has testified about his opinion in another lawsuit,
providing additional explanation and clarification for his opinion:
Okay. So if the person who has the eight weeks of exposure and 30 years
later develops mesothelioma, and prior to that eight weeks of exposure walks
through a garage where there is brake work going on or friction work going on, I
think you would tell me that contributed to his mesothelioma?
I think you’re putting words in my mouth. I wouldn’t say that walking
through a passive brake job contributes. I would never say that. My testimony is
that you have to be exposed days, weeks, typically months or more for that to be a
contributing factor. So walking through doesn’t mean anything to me.
Doc. 107-4 at 7–8 (Brody Dep. 33:19–34:10).2
Dr. Brody’s Expert Report offers no opinions specific to the decedent in this case—Mr.
Rabe. Instead, as plaintiff asserts, Dr. Brody provides expert testimony on general causation,
including the biological mechanism of asbestos injury.
This deposition testimony came from Bodine v. 3M Co., No. 13-CV-02497 (D. Minn.). Plaintiff
has submitted a Declaration from Benjamin H. Adams, an attorney in that case, to authenticate Dr.
Brody’s deposition transcript from the Bodine case. Defendant hasn’t disputed the transcript’s
B. Dr. Barry Castleman
Dr. Barry Castleman has more than 40 years of experience “in the area of asbestos and
other occupation and environmental health problems.” Doc. 109-5 at 1 (Dr. Castleman’s Expert
Report). He works in the field of occupational and environmental health policy, focusing on “the
recognition of risk factors and the prevention of disease from industrial activities.” Id.
In 1968, Dr. Castleman received a Bachelor of Science degree in chemical engineering
from Johns Hopkins University. In 1972, he earned a Master’s Degree in Environmental
Engineering, also from Johns Hopkins University. In 1985, Dr. Castleman was awarded a
Doctor of Science Degree in Health Policy from Johns Hopkins School of Hygiene and Public
Health. Dr. Castleman’s doctoral work “was mainly in the areas of toxicology, epidemiology,
biostatistics, physiology, and public health policy.” Id.
Dr. Castleman authored a doctoral thesis titled Asbestos: An Historical Case Study of
Corporate Response to an Industrial Health Hazard. Id. His thesis is largely identical to a 1984
book that he published titled Asbestos: Medical and Legal Aspects. Id. Dr. Castleman’s thesis
and book provide a “historical review of the asbestos problem as a public health problem in
society worldwide, but mainly in the United States.” Id. And they include “a comprehensive
review of medical literature of all kinds, as well as other literature available in libraries and
published sources such as government publications, safety magazines, engineering journals,
trade magazines, insurance publications, encyclopedias, popular magazines, and newspapers.”
Id. Several courts, including the Supreme Court, have cited Dr. Castleman’s book. See, e.g.,
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 631 (1997) (Breyer, J., concurring in part and
dissenting in part); Peerman v. Georgia-Pacific Corp., 35 F.3d 284, 285 (7th Cir. 1994); Nicolet,
Inc. v. Nutt, 525 A.2d 146, 148 (Del. 1987) (referring to Dr. Castleman’s book as a “learned
In addition to published information, Dr. Castleman has examined unpublished historical
documents addressing asbestos hazards. Doc. 109-5 at 1 (Dr. Castleman’s Expert Report).
These documents include trade association minutes, corporate documents, and testimony by
corporate officials. Id. Also, Dr. Castleman has interviewed “old-timers in the field of industrial
medicine and hygiene,” including physicians who were active in the field of occupational
medicine and had studied asbestos. Id.
Dr. Castleman has authored many articles about asbestos disease. Doc. 109-3 at 2–4 (Dr.
Castleman’s Curriculum Vitae). He has testified about asbestos exposure before committees of
the United States Senate and House of Representatives. Id. at 2. And he has served as a
consultant to many organizations including Congress’s Office of Technology Assessment, the
Consumer Product Safety Commission, the Environmental Protection Agency, the Occupational
Safety and Health Administration, the National Academy of Sciences, the Environment Defense
Fund, and the Natural Resources Defense Council. Id. at 1–2.
Dr. Castleman’s Expert Report summarizes “the body of knowledge” about asbestosis,
lung cancer, and mesothelioma starting in the late 1800s. Doc. 109-5 at 2–7 (Dr. Castleman’s
Expert Report). Specifically, he provides information about the history of the railroad industry’s
awareness of asbestos hazards. Id. at 15. Based on his review of the historical record, Dr.
Castleman concludes that “the literature had largely established that asbestos was a lethal
material by the early 1930s.” Id. at 16. Also, Dr. Castleman opines that “[b]y the mid-1940s, it
was widely accepted . . . that asbestos inhalation could also cause lung cancer.” Id. And “[t]he
risk of mesothelioma . . . became a subject of intense discussion in the early 1960s . . . .” Id. Dr.
Castleman opines that the literature addressing the risks of asbestos exposure “was available in
the medical libraries to anyone who knew how to spell the word asbestosis.” Id. And finding
any of this literature would not “require using any kind of computer search or any other kind of
modern technique.” Id.
The court has a “gatekeeping obligation” to determine the admissibility of expert
testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (citing Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). When performing this gatekeeping role, the court
has broad discretion. Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1499 (10th Cir. 1996) (citing
Orth v. Emerson Elec. Co., 980 F.2d 632, 637 (10th Cir. 1992)). Courts exercise this discretion
under Federal Rule of Evidence 702. It 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
(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.
Our Circuit has directed trial judges to apply a two-part test to determine admissibility.
Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013). First, the court must determine
“whether the expert is qualified ‘by knowledge, skill, experience, training, or education’ to
render an opinion.” United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (quoting
Fed. R. Evid. 702). Second, the court “‘must satisfy itself that the proposed expert testimony is
both reliable and relevant, in that it will assist the trier of fact, before permitting a jury to assess
such testimony.’” Id. (quoting United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir.
2006)) (further citations omitted).
To qualify as an expert witness, the witness must possess “such skill, experience or
knowledge in that particular field as to make it appear that his opinion would rest on substantial
foundation and would tend to aid the trier of fact in his search for truth.” LifeWise Master
Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004) (citation and internal quotation marks
omitted). To determine whether the expert’s testimony is reliable, the court must assess
“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.
In Daubert, the Supreme Court identified four factors that—though not exhaustive—trial
courts may consider when determining reliability of proffered expert testimony under Fed. R.
Evid. 702. They are: (1) whether the theory used can be and has been tested; (2) whether it has
been subjected to peer review and publication; (3) the known or potential rate of error; and (4)
general acceptance in the scientific community. Id. at 593–94. The Supreme Court has
emphasized, however, that these four factors are not a “definitive checklist or test,” and that a
court’s gatekeeping inquiry into reliability “must be tied to the facts of a particular case.”
Kumho Tire, 526 U.S. at 150 (citations and internal quotation marks omitted).
But in some cases, “the relevant reliability concerns may focus upon personal knowledge
or experience,” rather than the Daubert factors and scientific foundation. Id. For such testimony
to satisfy the reliability standard, it “must be ‘based on actual knowledge, and not mere
“subjective belief or unsupported speculation.”’” Pioneer Ctrs. Holding Co. Emp. Stock
Ownership Plan & Trust v. Alerus Fin., N.A., 858 F.3d 1324, 1341–42 (10th Cir. 2017) (quoting
Mitchell v. Gencorp, Inc., 165 F.3d 778, 780 (10th Cir. 1999) (quoting Daubert, 509 U.S. at
590)). “When expert opinion ‘is not supported by sufficient facts to validate it in the eyes of the
law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it
cannot support a jury’s verdict’ and will be excluded.” Id. at 1342 (quoting Brooke Grp. Ltd. v.
Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993)).
“The proponent of expert testimony bears the burden of showing that the testimony is
admissible.” Conroy, 707 F.3d at 1168 (citing Nacchio, 555 F.3d at 1241). “[R]ejection of
expert testimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory committee’s
notes to 2000 amendments. While Daubert requires the court to serve as a gatekeeper for expert
testimony, “[v]igorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof” remain “the traditional and appropriate means of attacking
shaky but admissible evidence.” Daubert, 509 U.S. at 596 (citation omitted).
The court also has discretion to determine how to perform its gatekeeping function under
Daubert. Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000). “The
most common method for fulfilling this function is a Daubert hearing, although such a process is
not specifically mandated.” Id. (citations omitted); see also United States v. Charley, 189 F.3d
1251, 1266 (10th Cir. 1999) (“The trial judge is granted great latitude . . . in deciding whether to
hold a formal [Daubert] hearing.”). The district court also may satisfy its gatekeeping role when
ruling on a Daubert motion “so long as the court has sufficient evidence to perform ‘the task of
ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task
at hand.’” Goebel, 215 F.3d at 1087 (quoting Daubert, 509 U.S. at 597).
Here, defendant’s motions ask the court to hold a Daubert hearing. Docs. 97 at 1 & 99 at
1. Plaintiff’s filings never respond to that request. But, exercising its discretion, the court
concludes that it need not hold a Daubert hearing to rule defendant’s motions to exclude. And
after reviewing the parties’ filings and attached exhibits carefully, the court finds that the parties
have provided a sufficient record to render a decision without a hearing. The court thus denies
defendant’s request for a Daubert hearing.
The court first addresses defendant’s arguments to exclude the testimony of Dr. Brody.
The court then turns to consider defendant’s arguments to exclude Dr. Castleman’s testimony.
A. Arnold Brody
Defendant’s motion argues that the court should exclude Dr. Brody’s testimony under
Federal Rule of Evidence 702 and Daubert because, defendant contends, his opinions are not
reliable and not helpful to the jury. Defendant’s motion thus focuses on the second part of the
two-part test that the court must apply to determine whether Dr. Brody’s expert testimony is
admissible. See United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (explaining that
the second part of the test requires the court to “‘satisfy itself that the proposed expert testimony
is both reliable and relevant, in that it will assist the trier of fact, before permitting a jury to
assess such testimony.’” (quoting United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th
Cir. 2006)) (further citations omitted).
Defendant never asserts that Dr. Brody’s testimony fails to satisfy the first part of the
two-part test. The first part of that test requires the court to determine “whether the expert is
qualified ‘by knowledge, skill, experience, training, or education’ to render an opinion.” Id.
(quoting Fed. R. Evid. 702). After reviewing the materials submitted with plaintiff’s response to
defendant’s motion, the court is satisfied that Dr. Brody is qualified to testify about the opinions
set forth in his Expert Report. As already described, Dr. Brody has a Ph.D. in Cell Biology with
a specialty in Ultrastructural Cytology from Colorado State University. Currently, Dr. Brody is a
Professor Emeritus in the Pathology Department of Tulane University Medical School and an
Adjunct Professor at North Carolina State University in the Department of Molecular and
Biomedical Sciences. For decades, Dr. Brody has worked in the field of biomedical sciences,
focusing on the pathobiology of several lung diseases. Since the 1970s, Dr. Brody has
concentrated his research on how asbestos causes lung disease. Dr. Brody has published more
than 150 peer-reviewed articles in the scientific literature and has presented his research at
medical and scientific conferences around the world on lung cell biology, asbestos, and lung
Dr. Brody’s Expert Report (Doc. 107-1) establishes that he bases his opinions on his
education, training, and experience in the field of biomedical science, and particularly his
research in the areas of lung cell biology, asbestos, and lung disease. The court finds that this
education, training, and experience makes Dr. Brody qualified to testify about the opinions in his
Expert Report. See Util. Trailer Sales of Kan. City, Inc. v. MAC Trailer Mfg., Inc., 267 F.R.D.
368, 370 (D. Kan. 2010) (“Experience alone—or experience combined with other knowledge,
skill, training, or education—may provide a sufficient foundation for expert testimony.” (citing
Fed. R. Evid. 702 advisory committee’s note to the 2000 amendments)). The court thus
concludes that Dr. Brody’s testimony satisfies the first part of the two-part test for admissibility.
Turning to the second part of the test, defendant advances four arguments challenging the
reliability and relevance of Dr. Brody’s testimony. The court addresses each of those arguments,
in turn, below.
First, defendant argues that Dr. Brody’s testimony is irrelevant and immaterial because
he is not familiar with Mr. Rabe’s condition or with the effects of asbestos on humans. Plaintiff
concedes that Dr. Brody will not offer testimony specific to Mr. Rabe’s condition. Instead, Dr.
Brody will provide testimony about general causation, i.e., how asbestos exposure causes lung
disease in humans. And, plaintiff contends, the issue of general causation is relevant to
plaintiff’s claims here because she bears the burden of showing that Mr. Rabe’s exposure to
asbestos in defendant’s passenger cars caused Mr. Rabe to develop mesothelioma. Indeed,
several other federal courts have found that Dr. Brody’s expert testimony on general causation is
relevant in asbestos cases and thus have permitted him to provide expert testimony of this kind.
See, e.g., Waite v. AII Acquisition Corp., 194 F. Supp. 3d 1298, 1315 (S.D. Fla. 2016)
(concluding that although “Dr. Brody has not expressed an opinion regarding specific causation
of [plaintiff’s] cancer,” he instead “simply provides reliable background on asbestos diseases like
mesothelioma—going to general causation” and thus “his testimony is permissible”); Rabovsky
v. Air & Liquid Sys. Corp., No. 10-3202, 2012 WL 876752, at *3–4 (E.D. Pa. Mar. 13, 2012)
(denying motion in limine to exclude Dr. Brody’s opinions because the court concluded his
testimony about causation was relevant and reliable); In re Asbestos Prods. Liab. Litig., No. 0969123, 2010 WL 4676563, at *3 (E.D. Pa. Nov. 15, 2010) (finding Dr. Brody’s testimony was
relevant and reliable when it was “limited to general testimony about how asbestos causes
cancer” but did “not include any opinion [about] specific causation in this case” and recognizing
that plaintiffs were offering “Dr. Brody’s testimony to educate the jury about the physiological
design and function of the lungs, how asbestos fibers migrate throughout the body and are
deposited in the lungs, the different types of asbestos fibers, and how all exposures to asbestos
contribute to cause an individual’s disease.” (internal quotation marks omitted)). The court finds
these rulings highly persuasive and agrees that Dr. Brody’s expert testimony about general
causation is relevant to the issues in this case. Thus, the court declines to exclude his testimony
based on defendant’s relevance argument.
Also, the court rejects defendant’s argument that Dr. Brody’s testimony is not relevant
because he has based his research on laboratory animals. Although Dr. Brody has used animals
in his research, he asserts that his research has shown “that the cells from which those diseases
develop are the same in animals as they are in humans, and that the inhaled asbestos fibers land
in the same place in animals as they do in humans.” Doc. 107-1 at 12 (Dr. Brody Expert Report
¶ 18). Dr. Brody explains that his research “has focused specifically on the process by which
asbestos causes these diseases, by controlling the animals’ dose of asbestos and then examining
their lungs at various times after the exposure occurred.” Id. at 13 (Dr. Brody Expert Report ¶
20). Dr. Brody asserts that “[m]any of his peer-reviewed publications have addressed this issue.”
Id. When presented with Dr. Brody’s testimony about general causation, at least one other court
has rejected a challenge similar to defendant’s argument here. See In re Asbestos Prods. Liab.
Litig., 2010 WL 4676563, at *3–4 (refusing to exclude Dr. Brody’s opinion because he had not
relied on epidemiological studies and finding that his opinion still was relevant and reliable
because it relied on more than 100 peer-reviewed publications explaining the relationship
between asbestos fibers and disease processes generally). Likewise, the court rejects defendant’s
argument here. Defendant’s challenge to Dr. Brody’s opinions based on its argument that his
research used laboratory animals goes to the weight of his testimony—not its admissibility.
Defendant can explore this subject on cross-examination and try to convince the jury that this
component of Dr. Brody’s research renders its implausible. But it does not permit the court to
exclude his opinion.
Second, defendant asserts that the court should exclude Dr. Brody’s testimony under
Federal Rule of Evidence 403 because: (1) its probative value is substantially outweighed by the
risk of undue prejudice; (2) the testimony is confusing; and (3) it will waste time. Federal Rule
of Evidence 403 provides: “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Defendant asserts that Dr. Brody’s testimony is unduly prejudicial and
confusing because he uses slides that include magnified images of cells to illustrate how asbestos
can cause lung disease. Defendant contends that the “sheer size” of these images creates a
prejudicial and misleading impression. Doc. 98 at 7. The court disagrees. Dr. Brody’s Expert
Report provides a description of each slide, supporting its content with scientific reasoning and
explaining how the slides show how the disease progresses. The court finds nothing prejudicial
or confusing about these slides. Certainly, defendant can cross-examine Dr. Brody about the
magnification of these slides. But the court will not exclude Dr. Brody’s testimony for this
Also, defendant argues, Dr. Brody’s testimony is an undue waste of time because it
“typically lasts more than one full day.” Id. at 8. Plaintiff calls this description “hyperbolic.”
Doc. 107 at 15. And plaintiff estimates that Dr. Brody’s entire testimony (including direct and
cross-examination) should last about three hours. Id. The court finds that Dr. Brody’s proffered
testimony—i.e., general causation issues that are relevant to the case—is not an undue waste of
time, especially when plaintiff estimates it should only take three hours for Dr. Brody to
complete that testimony.
Third, defendant argues that Dr. Brody will testify that “each and every asbestos fiber
inhaled by Mr. Rabe was capable of causing” his mesothelioma. Doc. 98 at 8. This opinion is
inadmissible under Federal Rule of Evidence 702 and Daubert, defendant argues, because Dr.
Brody asserts that no threshold exists for determining when exposure to asbestos above
background levels is sufficient to cause mesothelioma.
Plaintiff responds that defendant’s argument mischaracterizes Dr. Brody’s testimony.
Plaintiff asserts that Dr. Brody will not testify that each asbestos fiber is a substantial cause of
mesothelioma. Instead, as Dr. Brody’s Expert Report explains, “asbestos-included cancers are
dose-response diseases, in that the more asbestos a person is exposed to, the more likely that
person is to develop disease.” Doc. 107-1 at 20–21 (Dr. Brody’s Expert Report ¶ 44). “Once a
person develops an asbestos-related cancer, it is not possible to exclude any of the person’s
above-background exposures to asbestos from the causal chain.” Id. “Each and every exposure
to asbestos that an individual with mesothelioma experienced in excess of a background level
contributes to the development of the disease.” Id. Also, Dr. Brody opines that “[t]he consensus
scientific opinion . . . is that no amount of exposure to asbestos above the background levels
present in ambient air has been established as too low to induce mesothelioma.” Id. at 21 (Dr.
Brody’s Expert Report ¶ 45). And, in another case, Dr. Brody testified that he does not believe
that passive exposure to asbestos can cause lung disease; instead, a person must “be exposed [to
asbestos] days, weeks, typically months or more for that [exposure] to be a contributing factor.”
Doc. 107-4 at 7–8 (Brody Dep. 33:19–34:10).
Other courts have rejected similar Daubert challenges to Dr. Brody’s testimony on the
premise that he is opining that “every exposure” causes mesothelioma. These courts have
explained that his testimony never makes the “inferential leap that is troublesome in the ‘every
exposure’ or ‘cumulative exposure’ theories—that is, he does not opine that because an exposure
occurred and necessarily adds to the total dose, that single exposure must be a substantial cause.”
Jack v. Borg-Warner Morse TEC, LLC, No. C17-0537JLR, 2018 WL 3819027, at *17 (W.D.
Wash. Aug. 10, 2018). Instead, Dr. Brody’s testimony offers “general statements of the science
behind asbestos-related disease.” Id. at *16. His testimony includes “[t]he fact that every
exposure adds to the total dose” which “is an ‘irrefutable scientific fact,’ and it is ‘wellestablished’ that the threshold level for developing mesothelioma is unknown.” Id. (quoting Rost
v. Ford Motor Co., 151 A.3d 1032, 1045 (Pa. 2016)). Under this reasoning, courts have held Dr.
Brody’s testimony reliable and thus admissible under Daubert. Id. (denying motion to exclude
Dr. Brody’s testimony because none of his opinions about general causation “run afoul of
Daubert”); see also Gore v. Air & Liquid Sys. Corp., No. 5:16-cv-716-BR, 2018 WL 4558182, at
*11–12 (E.D.N.C. Sept. 21, 2018) (denying motion to exclude Dr. Brody’s testimony because his
“opinion . . . that mesothelioma is a dose-responsive disease and an individual’s increasing
exposure increases his or her risk of developing mesothelioma” was reliable and Dr. Brody did
not “seek to testify that each and every one of [plaintiff’s] exposures caused his mesothelioma
because he [wasn’t offering] specific testimony about [plaintiff]”); Waite v. AII Acquisition
Corp., 194 F. Supp. 3d 1298, 1315 (S.D. Fla. 2016) (concluding that although “Dr. Brody has
not expressed an opinion regarding specific causation of [plaintiff’s] cancer,” he instead “simply
provides reliable background on asbestos diseases like mesothelioma—going to general
causation” and thus “his testimony is permissible”); Rabovsky v. Air & Liquid Sys. Corp., No.
10-3202, 2012 WL 876752, at *4 (E.D. Pa. Mar. 13, 2012) (holding that Dr. Brody’s “each-andevery-exposure opinion” was not “legally insufficient to prove substantial-factor causation”); In
re Asbestos Prods. Liab. Litig., No. 09-69123, 2010 WL 4676563, at *3 (E.D. Pa. Nov. 15, 2010)
(holding that Dr. Brody’s testimony satisfied the “reliability requirement of Rule 702 and
Daubert” because it would “assist the jury in understanding the relationship between exposure to
asbestos fibers and disease processes generally” and rested on a “breath of peer-reviewed
Applying the sound reasoning of these federal cases, the court concludes that Dr. Brody’s
testimony is sufficiently reliable because it rests on general scientific principles about how
asbestos exposure causes mesothelioma. Also, Dr. Brody offers no testimony about the specific
causation of Mr. Rabe’s mesothelioma. Thus, he expresses no opinion about Mr. Rabe’s
individual exposures and whether those exposures caused his mesothelioma. The court thus
concludes that none of Dr. Brody’s opinions “run afoul of Daubert.” Jack, 2018 WL 3819027,
Finally, defendant contends that Dr. Brody’s testimony is cumulative. Defendant argues
that another one of plaintiff’s experts—Dr. Victor Roggli, a pathologist—will testify about the
pathology of asbestos-related diseases. And so, defendant asserts, Dr. Brody’s testimony about
how asbestos fibers can cause lung disease, including mesothelioma, at the cellular level is
cumulative of Dr. Roggli’s testimony. Plaintiff disagrees. Plaintiff asserts that Dr. Roggli
intends to offer testimony about specific causation—i.e., his diagnostic opinions about how Mr.
Rabe contracted mesothelioma. In contrast, Dr. Brody will offer testimony on general causation.
Given these differences between the two witnesses’ testimony, the court finds that Dr. Brody’s
testimony is not cumulative.
In sum, the court is not persuaded by any of defendant’s arguments trying to exclude Dr.
Brody’s expert testimony at trial. Plaintiff has shown that Dr. Brody is qualified to testify about
the expert opinions in his Report. Also, plaintiff has established that his opinions are both
relevant and reliable and that his testimony will help the jury understand the issues in the case.
The court thus denies defendant’s Motion to Exclude the Testimony of Dr. Arnold Brody.
B. Dr. Barry Castleman
In response to plaintiff’s allegations that Mr. Rabe died from mesothelioma caused by
exposure to asbestos in defendant’s passenger railcars, defendant has asserted the “state of the
art” affirmative defense. Doc. 68 at 18 (Pretrial Order ¶ 4.b.). That is, defendant asserts, its
products “conformed to the state of the art at the time of sale and were designed, manufactured,
and tested pursuant to generally recognized and prevailing standards and in conformance with
the statutes, regulations, and requirements that governed the product or products at the time of
design, manufacture, and sale, if any.” Id. At trial, plaintiff intends to offer the testimony of Dr.
Castleman to rebut defendant’s affirmative defense. Dr. Castleman’s proffered testimony will
explain how knowledge of the risks of asbestos has progressed. Also, he will identify the
information and literature available to defendant before and during Mr. Rabe’s exposures to
asbestos while working at ATSF.
Defendant argues that the court should exclude Dr. Castleman’s testimony for three
reasons. The court addresses each argument, in turn, below.
First, defendant asserts that Dr. Castleman is not qualified to offer opinions about
medical articles or defendant’s alleged knowledge of the dangers of asbestos. Defendant argues
that Dr. Castleman is not a medical doctor, industrial hygienist, or epidemiologist. And, thus,
defendant contends, Dr. Castleman is not qualified to interpret any of the medical literature that
he plans to describe for the jury. But plaintiff responds that Dr. Castleman will not testify about
the diagnosis of asbestos disease. Also, he will offer no opinions about specific or general
causation. Instead, plaintiff will offer Dr. Castleman’s testimony to discuss the development and
awareness of the hazards of asbestos in the scientific and technical community. Other courts
have permitted Dr. Castleman to provide testimony like this because his testimony does not
“judge the correctness of the medical literature.” Jack v. Borg-Warner Morse TEC, LLC, No.
C17-0537JLR, 2018 WL 3819027, at *17 (W.D. Wash. Aug. 10, 2018). Instead, he will explain
“the historical development of knowledge regarding the health hazards of asbestos” which he is
qualified to do. Id. at *18; see also Waite v. AII Acquisition Corp., 194 F. Supp. 3d 1298, 1310
(S.D. Fla. 2016) (rejecting defendant’s argument that Dr. Castleman did not possess “the level of
expertise necessary to testify as to the contents and interpretation of the materials he has
reviewed” and instead finding that Dr. Castleman’s education, training, and experience
established that he was qualified to provide the proffered expert testimony); Krik v. Crane Co.,
71 F. Supp. 3d 784, 787 (N.D. Ill. 2014) (holding that Dr. Castleman was qualified to testify
about “the development of the awareness of the hazards of asbestos and available substitutes in
the scientific and technical publications, internal corporate documents, and trade and
professional organization documents”).
Likewise, the court finds that Dr. Castleman is qualified to render his opinions. As
discussed above, Dr. Castleman has extensive education, training, and experience in the field of
occupational and environmental health policy and, specifically, for asbestos. Dr. Castleman
holds a Doctor of Science Degree in Health Policy from Johns Hopkins School of Hygiene and
Public Health. Also, he has authored a book that provides a historical review of the asbestos
problem as a public health problem. Besides his book, Dr. Castleman has published many
articles about asbestos disease. He has testified before Senate and House committees about
asbestos exposure, and he has provided consulting services to many organizations. The court
finds that Dr. Castleman’s curriculum vitae and Expert Report establish that he has the necessary
education, training, and experience to qualify him as an expert witness.
But the court agrees with defendant that Dr. Castleman cannot testify about defendant’s
conduct or knowledge about the dangers of asbestos because he has no direct or indirect
knowledge about defendant’s corporate practices. Defendant also asserts that permitting Dr.
Castleman to testify about defendant’s knowledge would invade the jury’s province. Other
courts have precluded Dr. Castleman from testifying about what a defendant knew, or should
have known about asbestos. See, e.g., Jack, 2018 WL 3819027, at *17 (finding that, given the
limitation that Dr. Castleman would not testify about “what any particular [d]efendant knew or
should have known at any given time regarding asbestos,” his testimony was “admissible under
Rule 702 and Daubert”); Krik, 71 F. Supp. 3d at 788 (holding that Dr. Castleman could “observe
that certain companies were members of relevant organizations, or that representatives of certain
companies were members of relevant committees, but again he may not testify as to what a
particular company knew or should have known as a result because he lacks sufficient
foundation to do so”). These rulings are persuasive, and for the same reasons, the court
precludes Dr. Castleman from testifying about defendant’s knowledge of the risks of asbestos.
But Dr. Castleman is qualified to offer his other opinions about the historic progression of the
knowledge surrounding the risks of asbestos exposure.
Second, defendant argues that Dr. Castleman’s summary of literature addressing the
hazards of asbestos is not helpful to the jury because he merely recites the contents of medical
literature. The court disagrees. As one court has observed, “[a] jury could not possibly examine
every single letter, note, article, and publication reviewed and analyzed by Dr. Castleman in his
more than four decades of practice and research.” Waite, 194 F. Supp. 3d at 1311. Instead, Dr.
Castleman’s research “can serve the purpose of providing context and grounding scientific
information integral to the determination of this case.” Id. Also, defendant argues, the court
should exclude Dr. Castleman’s testimony under Federal Rule of Evidence 403 because its
relevance is outweighed by the risk of wasting time and confusing the jury. The court disagrees.
Defendant placed the “state of the art” defense at issue by asserting it as an affirmative defense.
In response, plaintiff offers Dr. Castleman’s testimony to provide historical context about the
knowledge of asbestos dangers. Dr. Castleman’s testimony is relevant to this issue. And the
court has little concern that his testimony will waste time or confuse the jury.
Finally, defendant asserts that Dr. Castleman cannot establish that the materials he relies
on to support his opinions are reliable. Plaintiff responds that Dr. Castleman’s testimony will not
try to verify the findings of any particular piece of literature. Nor will Dr. Castleman vouch for
any of the literature’s content as being “true.” So, plaintiff argues, none of Dr. Castleman’s
opinions are subject to hearsay objections. And, even if they were, plaintiff cites several
exceptions to the hearsay rule. For example, plaintiff contends that Dr. Castleman’s opinions
rest on materials that satisfy the ancient document exception under Fed. R. Evid. 803(16), and
the learned treatise exception under Fed. R. Evid. 803(18). Also, plaintiff asserts, Dr. Castleman
has summarized scientific articles into tables and charts in his book that qualify as a summary of
voluminous writings admissible under Fed. R. Evid. 1006. Finally, plaintiff argues, Fed. R.
Evid. 703 provides that when an expert bases his opinion “on facts or data” that “experts in the
particular field would reasonably rely on . . . in forming an opinion on the subject, they need not
be admissible for the opinion to be admitted.” For all these reasons, plaintiff has shown that Dr.
Castleman may rely on the materials he has described to form his opinions. The court thus
declines to exclude his testimony as unreliable.
For the reasons explained by this Order, the court concludes that Dr. Arnold Brody and
Dr. Barry Castleman’s opinions satisfy the requirements of Federal of Evidence 702 and
Daubert—with one limitation. Dr. Castleman may not testify about defendant’s knowledge of
the risks of asbestos because he lacks personal knowledge to provide such testimony. But
subject to that limitation, the court finds that Dr. Brody and Dr. Castleman’s testimony is
admissible expert testimony.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s Motion to
Exclude the Testimony of Dr. Arnold Brody (Doc. 97) is denied.
IT IS FURTHER ORDERED THAT defendant’s Motion to Exclude the Testimony of
Dr. Barry Castleman (Doc. 99) is granted in part and denied in part.
IT IS FURTHER ORDERED THAT defendant’s Motion to Exclude the Testimony of
Dr. Arthur Frank (Doc. 101) is denied as moot.
IT IS SO ORDERED.
Dated this 20th day of November, 2018, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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