Vedros v. Northrop Grumman et al

Filing 497

ORDER & REASONS: denying 448 Motion to Exclude Speculative Testimony of Exposure to Benjamin Foster Products by Dr. Frank Parker; denying 484 Motion for Leave to File Reply, because proposed pleading exceeds the page limit allowed by Local Rule 7.7. Signed by Judge Carl Barbier on 6/25/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SALLY GROS VEDROS

CIVIL ACTION

VERSUS

NO: 11-1198

NORTHROP GRUMMAN SHIPBUILDING,
INC., ET AL.

SECTION: "J" (4)

ORDER AND REASONS
Before the Court is a Motion to Exclude (Rec. Doc. 448) filed
by Defendant, Bayer CropScience, Inc., successor to Rhone-Poulenc
AG Company, formerly known as Benjamin Foster Products, Inc.,
formerly known as Amchem Company (“Amchem”), and an opposition
thereto (Rec. Doc. 459) by Plaintiffs, Sally Gros Vedros, et al
(“Plaintiffs”).

Having

considered

the

motion,

the

parties’

submissions, the record, and the applicable law, the Court finds,
for the reasons expressed below, that the motion should be DENIED.
PROCEDURAL AND FACTUAL BACKGROUND
At this point in the litigation, both the Court and the
parties are extremely familiar with the facts of this case. The
Court has previously set out the detailed facts of this matter in
its Order and Reasons dated April 24, 2014. (Rec. Doc. 341). For
purposes of the instant motion, only the following facts are
pertinent.

1

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 her father's work clothes, which
allegedly resulted in Vedros's secondary exposure to 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

Shipyards.
In 2010, Vedros filed the present lawsuit in the Civil
District Court for the Parish of Orleans, naming a number of
parties

as

defendants,

including

Amchem.

Amchem

was

the

manufacturer of a numerous products containing asbestos, including
coatings, sealants, and mastics. Plaintiffs allege that Vedros was
exposed to these products, specifically an adhesive called “81-27,”
during either her or her father’s employment at Avondale Shipyards.
Defendants removed the matter to this Court on May 20, 2011,
pursuant

to

the

Federal

Officer

Removal

Statute,

U.S.C.

§

1442(a)(1). Shortly thereafter, on June 3, 2011, Vedros died from
her struggle with mesothelioma.
On December 23, 2013, Amchem filed a Motion for Summary
Judgment

(Rec.

Doc.

214),

requesting

that

the

Court

dismiss

Plaintiffs’ claims against it, arguing that Plaintiffs had failed

2

to show that Vedros was ever exposed to asbestos from Amchem
products. After conducting oral argument, the Court denied the
motion, finding that sufficient evidence existed in the record to
support Plaintiffs’ claims against Amchem. (Rec. Doc. 318). On
December 24, 2013, Amchem then filed a Motion to Exclude Certain
Tests Conducted by Dr. James Millette (Rec. Doc. 224), which was
opposed by Plaintiffs (Rec. Doc. 241), and to which Amchem filed a
reply (Rec. Doc. 279). The Court subsequently continued the trial
date of this matter, and in doing so ordered that all pending
motions, including Amchem’s Motion to Exclude Tests were denied
without prejudice to be refiled closer to the trial date. (Rec.
Doc. 381). Amchem recently re-filed this motion. (Rec. Doc. 447).
Plaintiffs have retained Frank Parker, III (“Parker”), an
industrial hygienist, to testify as an expert witness at trial.
Parker’s expert report details his opinions regarding Vedros and
her father’s exposure to asbestos from products including those
manufactured by Amchem, as well as the increased risk caused by
this exposure. (Rec. Doc. 459-9). Amchem has now filed the
instant motion requesting that the Court exclude at trial the
expert testimony of Plaintiffs’ industrial hygienist expert,
Parker, on the bases that he is unqualified as an expert and that
his testimony is both unreliable and unduly speculative.
PARTIES' ARGUMENTS

3

Amchem presents several arguments in support of its motion to
exclude Parker’s expert testimony. First, Amchem contends that
Parker is not qualified to testify as an expert in this matter,
because he lacks “any experience with mastics or adhesives” that
would allow him to testify that exposure to asbestos in Amchem’s
mastics caused or contributed to Vedros’s mesothelioma. Second,
Amchem argues that Parker’s testimony is inadmissible due its
unreliability. Amchem contends that Parker’s testimony is purely
speculative, because he has failed to rely on any facts or data to
support his opinion that Vedros was exposed to asbestos through
Amchem’s products. Amchem also notes that Parker has failed to
conduct any analysis of Vedros’s exposure to Amchem 81-27 and has
not even attempted to quantify the “concentration or duration” of
Parker’s exposure to asbestos in Amchem’s products or calculate the
risk involved in such exposure. Amchem further notes that Parker
has not conducted any testing on mastics, and instead relies on a
series of unpublished experiments conducted by Dr. James Millette
regarding fiber release, which form the basis of Amchem’s pending
Motion to Exclude (Rec. Doc. 447). Amchem references this motion,
and again asserts that the underlying studies conducted by Dr.
Millette are unreliable and therefore inadmissible for, amongst
other

reasons,

failing

to

include

quality

control

checks.

Considering the numerous alleged flaws in Parker’s testimony,
Amchem argues that the Court should find that Parker is not

4

qualified to testify as an expert in this matter and exclude his
testimony.
In response, Plaintiffs maintain that Parker is qualified to
testify as an expert in this matter, and that his testimony is
both reliable and not unnecessarily speculative. First,
Plaintiffs present the Court with a number of cases within
Louisiana in which the courts denied similar Daubert motions
seeking to exclude Parker’s testimony. Plaintiffs then assert
that as a certified industrial hygienist, Parker is adequately
qualified to testify in this matter. Specifically, Plaintiffs
note that Parker has reviewed published and unpublished
literature regarding fiber release from mastics and adhesives,
giving him sufficient background to testify to this issue.
Further, Plaintiffs dispute Amchem’s allegations that Parker was
required to perform tests to calculate the exact dosages of
asbestos contained in the Amchem products. Moreover, Plaintiffs
contest Amchem’s assertions that the Millette studies are
unreliable, and incorporate the arguments previously provided to
the Court in their Opposition to Amchem’s motion to exclude the
Millette studies (Rec. Doc. 458). Plaintiffs also note that
Parker has not only relied on the Millette studies, but has also
relied on the deposition of Vedros and other Avondale employees,
his own expertise and knowledge, and a second published study
regarding fiber release from mastics and adhesives.
5

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
United States Supreme Court's decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), provides the analytical
framework for determining whether expert testimony is admissible
under 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
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).

6

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 maintenance of
standards controlling the technique's operation, and (5) whether
the technique is generally accepted in the relevant scientific
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) ("A trial judge has considerable leeway in determining how to
test an expert's reliability.") (internal citations and quotations
omitted).
DISCUSSION
A.

Frank Parker's Qualifications as Expert

The initial issue disputed by the parties is whether Parker is
qualified to testify as an expert in this matter. The parties do
7

not dispute that Parker is a certified industrial hygienist.
However, despite this title, Amchem argues that Parker does not
have the educational background or experience to qualify as an
expert with regards to Vedros’s alleged exposure to asbestos from
Amchem’s mastics and adhesives or the causation of Plaintiffs’
mesothelioma. Specifically, Amchem argues that Parker lacks any
experience “with mastics or adhesives” and has never performed any
tests of mastics and adhesives to support his opinions regarding
fiber release.
The Court does not agree with Amchem that Parker lacks
qualifications to testify as to Vedros’s alleged exposure to
asbestos. Parker has testified that he has performed “tens of
thousands” of samples on asbestos products throughout his career,
and is thus extremely familiar with the effect of asbestos
exposure and fiber release from a variety of types of products.
(Rec. Doc. 459-28). Amchem provides no support for its argument
that Parker should be excluded from testifying merely because he
does not have an extensive background in the area of mastics or
adhesives. Instead, considering that Parker has reviewed
literature regarding mastics and adhesives, and because he has
previously testified in numerous asbestos cases within Louisiana
as a qualified expert in the field of asbestos exposure, the
Court finds no reason to conclude that Parker lacks
qualifications as an expert in this matter. See Zimko v. Am.
8

Cyanamid, 03-0658, p. 16 (La. App. 4 Cir. 6/8/05); 905 So.2d 465,
478-89 (relying on Parker’s testimony that the defendant’s
refinery constituted “an unsafe environment with respect to
asbestos”); Chaisson v. Avondale Ind., Inc., 05-1511, p. 17 (La.
App. 4 Cir. 12/20/06); 947 So.2d 171, 184)(relying on Parker’s
testimony “about asbestos characteristics and the information
available to the industry regarding the hazards of household
asbestos exposure”); Egan v. Kaiser Aluminum & Chem. Corp., 941939, p. 5-6 (La. App. 4 Cir. 5/22/96); 677 So.2d 1027, 1032
(relying on Parker’s testimony regarding “the properties of
asbestos,” and his opinion that “asbestos fibers were ‘liberated’
in the areas in which [plaintiff] worked and that the plaintiff
would have inhaled those fibers.”).
B.

Reliability of Parker's Testimony

Amchem also argues that the Court should preclude Parker from
testifying

about

Vedros’s

exposure

to

asbestos

via

Amchem’s

products, because Parker’s testimony is based on insufficient facts
and data and is therefore unreliable. Amchem first asserts that
Parker’s testimony that Vedros was exposed to asbestos through
Amchem’s mastics and adhesives is purely speculative and is not
supported by any evidence contained in the record. Instead, Amchem
argues that Plaintiffs lack any evidence to show that Vedros was
ever exposed to asbestos through Amchem’s products. This argument

9

is identical to that raised in Amchem’s Motion for Summary Judgment
(Rec. Doc. 214), and concerns a primary issue in Plaintiffs’ claims
against

Amchem:

whether

Vedros’s

mesothelioma

was

caused

by

exposure to Amchem’s products.
The law is clear that “a motion in limine cannot be a
substitute for a motion for summary judgment.” Morgan v. Miss., 0715, 2009 WL 3259233, at *1 (S.D. Miss. Oct. 8, 2009) (citing Fed.
Prac. & Proc § 5037.18 (2d ed. West 2009) (stating that “the
preexisting caselaw provides ammunition against those who would use
the

motion

in

limine

as

a

substitute

for

a

motion

for

summary judgment or other peremptory ruling in civil cases.”)). The
use of a motion in limine to resolve issues such as causation,
which are properly raised in a motion for summary judgment, is thus
prohibited. In re Katrina Canal Breaches Consol. Litig., 05-4182,
2009 WL 982104, at *5 (E.D. La. Apr. 13, 2009) (Duval, J.). Here,
the issue of whether the record presents sufficient evidence to
establish that Vedros was exposed to asbestos via Amchem’s products
is one that has already been extensively briefed by the parties,
and one which this Court has determined must be resolved at trial.
Despite this, both Amchem and Plaintiffs devote a substantial
portion of their briefs to a detailed discussion of this issue. Not
only is this a misuse of both the parties’ and the Court’s
resources, but it is the entirely improper vehicle in which to

10

raise this issue. Accordingly, the Court will not consider this
argument.
Amchem next argues that Parker’s testimony lacks reliability
because he has failed to calculate the concentration of asbestos to
which Vedros was allegedly exposed. Specifically, Amchem notes that
“Mr. Parker makes no attempt to quantify concentration or duration
and makes no attempt to calculate risk.” (Rec. Doc. 448-1, p. 9).
However,

Amchem

provides

the

Court

with

no

jurisprudence

to

indicate that experts in the field of asbestos exposure are
required to conduct calculations to quantify the level of asbestos
to which a party is exposed.
Moreover, the Court must consider the difficulty involved in
conducting such calculations, due to the substantial amount of time
that has passed since Vedros’s alleged exposure. Partly due to this
difficulty,
Louisiana

both
have

this

Court

repeatedly

and
found

courts
that

within
in

the

proving

State

of

exposure,

plaintiffs are not required to present evidence of the specific
levels or concentrations of asbestos to which they were exposed.
Robertson v. Doug Ashy Bldg. Materials, Inc., 10-1552, p. 30 (La.
App. 1 Cir. 10/4/11); 77 So.3d 339, 359 (citing Rando v. Anco
Insulations, Inc., 08-1163, p. 35 (La. 5/22/09); 16 So.3d 1065,
1091; Comardelle v. Penn. Gen. Ins. Co., No. 13-6555, 2014 WL
7139398, at *4 (E.D. La. Dec. 15, 2014) (Africk, J.).

11

It logically follows that, in developing their opinions,
experts in the field of risk and causation in asbestos cases are
not required to rely on specific calculations of the exact dosage
or level of asbestos to which a plaintiff was allegedly exposed. A
Louisiana court previously addressed this exact issue, concluding
that:
On this issue, again, we cannot find, nor have we been
directed

to,

any

authority

for

the

trial

court’s

determination that a plaintiff must prove or that an
expert must know the “dose” of asbestos as to each
particular defendant in order to establish causation.
Robertson, 77 So.3d at 359. When facing nearly the exact same
issue, this Court adopted Robertson, finding that when a plaintiff
has proven sufficient evidence to raise a genuine issue of material
fact regarding his exposure to asbestos, the plaintiff’s experts
are

not

required

to

prove

the

specific

levels

of

asbestos

concentrations in a defendant’s products. Comardelle, 2014 WL
7139398, at *4 (citing Robertson, 77 So.3d at 359) (“[D]r. Hammer
need not know whether the asbestos concentrations at Union Carbide
reached a particular level in order to offer an opinion as to
causation.”).

In light of these decisions, and considering that

the Court has already determined that Plaintiffs have presented
sufficient evidence to establish a genuine issue of material fact

12

regarding Vedros’s exposure to asbestos through Amchem’s products
(Rec. Doc. 318), the mere fact that Parker has not relied on
specific calculations of asbestos levels in Amchem’s products does
not render his testimony unreliable.
Lastly, Amchem argues that Parker’s testimony should be deemed
inadmissible due to its unreliability, because, in establishing his
opinion, Parker relied on a series of experiments and studies
conducted by Dr. James Millette (“the Millette studies”). The
Millette studies form the basis of another motion filed by Amchem
which is currently pending before this Court, and in which Amchem
requests that the Court exclude all evidence of tests performed by
Dr. Millette and any testimony based thereon. (Rec. Doc. 447).
However, resolution of that motion is not necessary to determine
the admissibility of Parker’s expert testimony.
Amchem does not allege that the Millette studies are the sole
piece of evidence on which Parker relies to establish his opinion
regarding the risk of exposure from Amchem’s products, nor can it.
In reaching his opinion regarding Vedros’s exposure from mastics,
Parker relies both on the Millette studies, as well as measurements
of “airborne concentration of asbestos fibers released during
removal of mastics used to adhere floor tiles to a surface,” which
were performed by K.A. Brackett. (Rec. Doc. 459-9, p. 11). These
measurements were conducted as part of a 1992 published study by

13

the U.S. Environmental Protection Agency. (Rec. Doc. 459-9, p. 11,
20, n. 57; Rec. Doc. 459, p. 14). Amchem does not contest the
reliability of the Brackett measurements, nor does the Court find
any reason why these measurements do not constitute valid evidence
on which to base an expert opinion. Because Parker has based his
expert opinion on the issue of exposure from mastics on reliable
scientific literature, it is not necessary in considering whether
to exclude Parker’s testimony to determine whether the Millette
studies are admissible evidence.
Because Amchem has failed to prove that Parker’s testimony
is speculative or unreliable, or that Parker is not qualified to
testify as an expert, the Court finds no reason to exclude
Parker’s expert testimony at trial.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Amchem's Motion to Exclude (Rec.
Doc. 448) is DENIED.
IT IS FURTHER ORDERED that Amchem's Motion for Leave to Reply
(Rec. Doc. 484) is DENIED, because Amchem's proposed pleading
exceeds the page limit allowed by Local Rule 7.7.
New Orleans, Louisiana this 25th day of June, 2015.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
14