Vedros v. Northrop Grumman et al

Filing 494

ORDER & REASONS: denying 450 Motion to Exclude Certain Testimony of Danny Joyce; denying 451 Motion to Exclude Certain Testimony of Dennis J. Paustenbach. Signed by Judge Carl Barbier on 6/18/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

VEDROS

CIVIL ACTION

VERSUS

NO: 11-1198

NORTHROP GRUMMAN ET AL.
ORDER & REASONS

SECTION: “J” (4)

Before the Court is Plaintiffs Gerald Vedros, Lori Vedros
Kravet, and Valerie Vedros White’s Motion to Exclude Certain
Testimony of Danny Joyce (Rec. Doc. 450) and Defendant Northrop
Grumman

Shipbuilding,

Inc.

(n/k/a

Huntington

Ingalls

Incorporated, f/k/a Northrop Grumman Ship Systems, Inc., f/k/a
Avondale Industries, Inc., f/k/a Avondale Shipyards, Inc., f/k/a
Avondale Marine Ways, Inc.)(“Avondale”)’ and Albert L. Bossier,
Jr.,

and

Company,

J.
and

Melton

Garrett,

American

and

OneBeacon

Employers

Insurance

America

Insurance

Company

in

their

capacities as alleged insurers of Avondale’s alleged executive
officers
thereto

(collectively,
(Rec.

Doc.

465),

“Avondale
as

well

Interests”)’s
as

opposition

Plaintiffs’

Motion

to

Exclude Certain Testimony of Dennis J. Paustenbach (Rec. Doc.
451)

and

Defendant

Rhone-Poulenc

AG

Bayer

Company,

CropScience,
f/k/a

Amchem

Inc.,

as

Products,

Successor
Inc.,

to

f/k/a

Benjamin Foster Company (“Amchem”)’s opposition thereto. (Rec.
Doc.

466)

Having

considered

the

parties'

submissions,

the

record, and the applicable law, the Court finds, for the reasons
expressed below, that the motions should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
The Court is familiar with the facts of the case and so
will provide only a brief recitation here. This action arises
from

the

death

of

Sally

Gros

Vedros

(“Vedros”)

due

to

mesothelioma. Alton Gros, Vedros's father, worked at Avondale as
a welder from 1943 to 1976, and Vedros claims to have spent many
years

washing

resulted

in

her

father's

Vedros's

work

secondary

clothes,

exposure

which

to

allegedly

insulation

dust

containing asbestos. Vedros also worked at Avondale from 1960 to
1963 in the purchasing department, and she claims that she was
directly

exposed

to

asbestos

while

she

worked

at

Avondale.

Before her death, Vedros filed suit against many defendants, and
after her death, her children joined the suit as Plaintiffs.
Although

Plaintiffs

filed

suit

in

state

court,

Defendants

removed the matter to this Court on May 20, 2011.
Defendant
expert

report

Avondale
from

and

Danny

Avondale
Joyce

Interests

regarding

procured

Vedros’s

an

alleged

exposure to asbestos manufactured by R.J. Dorn Company (“R.J.
Dorn”) and Johns-Manville. In his report, Joyce opines on the
exposure

that

Vedros

clothing

while

Vedros’s

exposure

he

could

worked
to

at

have
R.J.

suffered
Dorn.

Johns-Manville

2

He

from

her

further

father’s
addresses

asbestos-containing

scrap

material as a result of its use in driveways, walkways, and fill
material on the Westbank of Jefferson Parish.
Defendant Amchem obtained expert testimony from Dennis J.
Paustenbach to show that the asbestos-containing Benjamin Foster
81-27 product would not have contributed to Vedros’s injury.
Paustenbach conducted a number of tests relating to Benjamin
Foster 81-27 and concluded that its asbestos fibers would not be
substantially released during certain activities, including when
removed or cleaned from clothing. Additionally, as did Joyce,
Paustenbach opined that the use of Johns-Manville’s asbestoscontaining scrap material on the Westbank of Jefferson Parish
contributed to Vedros’s injury.
Plaintiffs filed their Motion to Exclude Certain Testimony
of Danny Joyce (Rec. Doc. 450) and Motion to Exclude Certain
Testimony of Dennis J. Paustenbach (Rec. Doc. 451) on June 2,
2015. On June 9, 2015, Avondale (Rec. Doc. 465) and Amchem (Rec.
Doc. 466) filed oppositions.
PARTIES’ ARGUMENTS
A. Motion to Exclude Certain Testimony of Danny Joyce
Plaintiffs

seek

to

exclude

certain

testimony

of

Danny

Joyce, arguing that it is unreliable. (Rec. Doc. 450) Plaintiffs
first argue that Joyce lacks any evidence that Vedros’s father
ever worked at R.J. Dorn.

Plaintiffs assert that Joyce has no

evidence showing that Vedros’s father worked as a laborer at

3

R.J. Dorn or the tasks that such laborers performed. Even if
there were such evidence, Plaintiffs contend that Joyce has no
evidence from which to conclude that Vedros’s father wore his
R.J. Dorn work clothes home. Next, Plaintiffs argue that Joyce
should be precluded from presenting evidence that Vedros was
exposed to asbestos while living on the Westbank of Jefferson
Parish. They argue that there is no evidence to show that she
was exposed to any asbestos as a result of residing in the area.
Avondale

counter

argues

that

Joyce’s

testimony

is

both

relevant and reliable and, therefore, should be admitted. (Rec.
Doc.

465)

Avondale

argues

that

a

factual

basis

exists

for

Joyce’s testimony regarding Vedros’s exposure to asbestos as a
result of her father working for R.J. Dorn. Avondale states that
both

Vedros’s

father’s

Social

Security

records

and

the

application he submitted to Avondale while seeking to work there
reveal that he worked at R.J. Dorn. Avondale further argues that
Joyce concluded that Vedros’s father worked there as a laborer,
because he lacked the qualifications to do any other kind of
work for the company. Additionally, Avondale states that Joyce
reviewed documentation regarding the asbestos products that R.J.
Dorn manufactured at its Tchoupitoulas Street facility during
the time that Vedros’s father worked there. Avondale argues that
the

manufacturing

facilities

for

the

kinds

of

asbestos-

containing products that R.J. Dorn manufactured are “notorious”

4

for

asbestos

testimony

exposure.

regarding

Next,

Avondale

Vedros’s

exposure

argues
to

that

Joyce’s

Johns-Manville

asbestos-containing scrap material while living on the Westbank
of

Jefferson

Parish

is

well

founded.

This

scrap

material

contained crocidolite asbestos, the most toxic form of asbestos
for

causing

mesothelioma,

and

was

used

to

make

“driveways,

parking lots, playgrounds, school yards, golf courses, driveins, and was disposed of in dump sites, on the Westbank.” (Rec.
Doc. 465, p. 4) In fact, Avondale stresses that, in the 1990s,
the

Environmental

Protection

Agency

became

alarmed

at

the

toxicity of many such sites and abated many of them, including a
Lafayette Street. 1 Avondale

site near Vedros’s home at 2101 ½

therefore argues that Joyce’s testimony has a sufficient factual
basis

to

satisfy

the

requirements

of

Daubert

v.

Merrell

Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993).
B. Motion to Exclude Dennis J. Paustenbach
Plaintiffs

argue

that

Paustenbach’s

testimony

that

Benjamin Foster 81-27 does not substantially release asbestos
and

that

Vedros

was

exposed

to

asbestos

from

living

on

the

Westbank of Jefferson Parish should be excluded. (Rec. Doc. 451)
Plaintiffs assert that Paustenbach did not conduct any fiber
release

testing

with

regard

to

1

the

product

at

issue

here,

Avondale bases this argument on Asbestos Disposal Verification Forms for 2101
Lafayette Street. As mentioned above, Vedros lived at 2101 ½ Lafayette
Street.

5

Benjamin

Foster

81-27.

Thus,

because

Vedros

allegedly

was

exposed to this product as a result of removing it from her
father’s clothing, Plaintiffs argue that Paustenbach’s testimony
has no bearing on the instant controversy. Plaintiffs contend
that any tests of other Benjamin Foster products are irrelevant
and

should

be

excluded.

Further,

Plaintiffs

assert

that

Paustenbach failed to monitor the air for fiber release when he
conducted
Foster

clothing

products.

stain
These

tests
tests

with

the

therefore

alternative
are

not

Benjamin

helpful

for

determining whether Vedros was exposed to asbestos fiber release
from

Benjamin

Foster

81-27

when

she

washed

her

father’s

clothing. Next, Plaintiffs again argue that testimony regarding
Vedros’s

alleged

exposure

to

asbestos

from

living

on

the

Westbank is not well founded, for the same reasons as above.
Defendant

Amchem

essentially

a

challenging

the

only

to

the

testimony.

argues

presentation
Paustenbach’s

weight

(Rec.

and

Doc.

not
466)

that

of

Plaintiffs’

their

substantive

conclusions,
the

which

admissibility

Amchem

motion

asserts

is

arguments

arguments

of

that

his

go

expert

Paustenbach

performed a number of studies using Benjamin Foster 81-27, the
results of which have been published in peer-reviewed scientific
literature. Amchem argues that the conditions of Paustenbach’s
tests

mirror

case,

and

the

alleged

therefore,

the

exposure
tests

6

scenario

are

at

“helpful

issue

to

the

in

this

jury

in

understanding the possible exposures from cleaning 81-27.” (Rec.
Doc. 466, p. 7) Lastly, Amchem disputes Plaintiffs’ arguments
regarding

the

Westbank

exposure

testimony,

presenting

similar

arguments to Avondale.
LEGAL STANDARD
Federal Rule of Evidence 702 provides that a witness who is
qualified

as

an

expert

may

testify

if:

(1)

the

expert's

“specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue”; (2) the expert's
testimony

“is

based

on

sufficient

facts

or

data”;

(3)

the

expert's testimony “is the product of reliable principles and
methods”; and (4) the principles and methods employed by the
expert have been reliably applied to the facts of the case. FED.
R. EVID.

702.

The

Daubert

v.

(1993),

provides

whether

United

Merrell

expert

Dow

the

States

Supreme

Court's

Pharmaceuticals,
analytical

testimony

is

Inc.,

framework

admissible

under

decision

509

for

U.S.

in
579

determining

Rule

702.

Both

scientific and nonscientific expert testimony are subject to the
Daubert

framework,

which

requires

trial

courts

to

make

a

preliminary assessment of “whether the expert testimony is both
reliable

and

relevant.”

Burleson

v.

Tex.

Dep't

of

Criminal

Justice, 393 F.3d 577, 584 (5th Cir. 2004); see also Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). When expert
testimony is challenged under Daubert, the party offering the

7

expert's testimony bears the burden of proving its reliability
and

relevance

by

a

preponderance

of

the

evidence.

Moore

v.

Ashland Chem. Co., Inc., 151 F.3d 269, 276 (5th Cir. 1998).
The

reliability

of

expert

testimony

“is

determined

by

assessing whether the reasoning or methodology underlying the
testimony

is

scientifically

valid.”

Knight

v.

Kirby

Inland

Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). A number of
nonexclusive

factors

may

be

relevant

to

the

reliability

analysis, including: (1) whether the technique at issue has been
tested, (2) whether the technique has been subjected to peer
review and publication, (3) the potential error rate, (4) the
existence

and

technique's

maintenance

operation,

generally

accepted

in

and

of

standards

(5)

whether

the

relevant

controlling
the

technique

scientific

the
is

community.

Burleson, 393 F.3d at 584. The reliability inquiry must remain
flexible,

however,

as

“not

every

Daubert

factor

will

be

applicable in every situation; and a court has discretion to
consider other factors it deems relevant.” Guy v. Crown Equip.
Corp., 394 F.3d 320, 325 (5th Cir. 2004); see also Runnels v.
Tex. Children's Hosp. Select Plan, 167 F. App'x. 377, 381 (5th
Cir.

2006)

determining

(“A
how

trial
to

test

judge
an

has

expert's

citations and quotations omitted).

8

considerable
reliability.”)

leeway

in

(internal

With respect to the relevancy prong, the proposed expert
testimony must be relevant “not simply in the way all testimony
must be relevant [pursuant to Rule 402], but also in the sense
that the expert's proposed opinion would assist the trier of
fact to understand or determine a fact in issue.” Bocanegra v.
Vicmar

Servs.,

Inc.,

320

F.3d

581,

584

(5th

Cir.

2003).

Ultimately, the Court should not allow its “gatekeeper” role to
supersede the traditional adversary system, or the jury's place
within that system. Scordill v. Louisville Ladder Group, L.L.C.,
No. 02–2565, 2003 WL 22427981, at *3 (E.D. La. Oct. 24, 2003).
As

the

court

in

Daubert

noted,

“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.” Daubert, 509 U.S. at
596. As a general rule, questions relating to the basis and
sources of an expert's opinion rather than its admissibility
should be left for the jury's consideration. United States v.
14.38 Acres of Land, More or Less Situated in Leflore Cnty.,
Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (citing Viterbo v. Dow
Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)).
DISCUSSION
The

crux

of

Plaintiffs’

arguments

with

regard

to

both

experts seems to be that they lack a factual basis for their
opinions. Further, Plaintiffs seem to be arguing the merits of

9

their case rather than the admissibility of the evidence. The
Court finds that the issues that Plaintiffs raise relating to
the basis and sources of Joyce and Paustenbach’s opinions should
be left to the jury. See 14.38 Acres of Land, 80 F.3d at 1077.
Plaintiffs may expose the alleged weaknesses in the opinions of
Joyce

and

Paustenbach

through

cross

examination

and

our

adversarial system. See Daubert, 509 U.S. at 596. The Court will
not preclude testimony of Joyce and Paustenbach. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motions (Rec. Docs.
450, 451) are DENIED.
New Orleans, Louisiana this 18th day of June, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

10