Vedros v. Northrop Grumman et al
Filing
506
ORDER granting 477 Motion to Strike Certain Opinions of Dr. Gail Stockman Which Are Outside the Scope of Opinions Offered by Dr. Robert Sawyer, Which Are Contrary to the Opinions of Dr. Robert Sawyer, and Which Are Contrary to Prior Rulings Already Rendered by This Court; denying as moot 501 Motion for Leave to File reply. Signed by Judge Carl Barbier. (lag)
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
Before the Court is a Motion to Strike Certain Opinions of
Dr. Gail Stockman Which Are Outside the Scope of Opinions Offered
by Dr. Robert Sawyer, Which Are Contrary to the Opinions of Dr.
Robert Sawyer, and Which Are Contrary to Prior Rulings Already
Rendered by This Court
(Rec. Doc. 477)
filed by Plaintiffs,
Gerald Vedros, Lori Vedros Kravet, and Valerie Vedros White, and
an Opposition (Rec. Doc. 496) and Supplemental Opposition thereto
(Rec.
Doc.
corporation,
Corporation,
500)
f/k/a
by
Defendant,
Viacom
f/k/a
Inc.,
CBS
Corporation
successor
Westinghouse
by
Electric
(a
merger
Delaware
to
CBS
Corporation)
("Westinghouse").
The Court is familiar with the facts of the case and so will
provide only a brief recitation here. This action arises from the
1
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. 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.
Since
that
time,
the
Court
has
continued
trial
of
this
matter on a number of occasions for various reasons. Accordingly,
the
Court
has
issued
several
Scheduling
Orders.
Westinghouse
timely supplied the expert report of Dr. Robert Sawyer on April
5, 2012, in accordance with a previous scheduling order. (Rec.
Doc. 424-1, p. 1; Rec. Doc. 424-2, p. 1) However, Dr. Sawyer is
now
deceased.
(Rec.
Doc.
424-1,
pp.
1-2)
Under
the
current
Scheduling Order, trial is set for August 10, 2015. (Rec. Doc.
386)
2
Due to the death of Dr. Sawyer, Westinghouse moved the Court
to allow substitution of Dr. Gail Stockman or Dr. William Longo
as an expert witness. (Rec. Doc. 424) Plaintiffs generally did
not
oppose
Westinghouse's
request,
but
asked
that
the
Court
restrict the scope of the replacement report to that of the
original report from Dr. Sawyer. Specifically, Plaintiffs argued
that the substitute expert "should only be allowed to fulfill
those opinions that cannot now be provided by Dr. Sawyer due to
his
passing."
(Rec.
Doc.
431,
p.
1)
The
Court
agreed
with
Plaintiffs that the scope of the replacement report should not
exceed the scope of that submitted by Dr. Sawyer. In allowing the
substitution, the Court further ordered that Westinghouse "shall
limit the scope of the replacement testimony to that of Dr.
Sawyer as much as possible." (Rec. Doc. 437, pp. 4-5)
On June 15, 2015, Plaintiffs filed the instant Motion to
Strike Certain Opinions of Dr. Gail Stockman Which Are Outside
the Scope of Opinions Offered by Dr. Robert Sawyer, Which Are
Contrary to the Opinions of Dr. Robert Sawyer, and Which Are
Contrary to Prior Rulings Already Rendered by This Court (Rec.
Doc. 477) Westinghouse opposed the motion on June 23, 2015 (Rec.
Doc. 496) and filed a supplemental opposition on June 29, 2015.
(Rec. Doc. 500)
3
Plaintiffs seek to preclude four categories of opinions of
Dr.
Stockman,
described
as
follows:
(1)
opinions
regarding
Hurthle Cell Carcinoma of the thyroid; (2) opinions that Vedros's
mesothelioma is not asbestos related; (3) opinions that Vedros's
exposure from washing her father's work clothing at Avondale was
not
contributory
to
her
mesothelioma;
and
(4)
opinions
that
Vedros's occupational exposure while working at Avondale were not
contributory.1
In response, Westinghouse argues that Dr. Stockman's report
and opinions are within the scope of Dr. Sawyer's report because
she applied the same basic occupational analysis as Dr. Sawyer to
the same issues Dr. Sawyer was to address. Westinghouse admits
that "a few of Dr. Stockman's views and opinions differ from that
of Dr. Sawyer," but explains that "such a difference is to be
expected as she is a different doctor with different training."
(Rec.
Doc.
496,
p.
2)
In
sum,
Westinghouse
argues
that
Dr.
Stockman's opinions remain within the same scope as those of Dr.
Sawyer,
despite
the
fact
that
"they
reached
different
conclusions." (Rec. Doc. 496, p. 4)
1
In total, Plaintiffs seek to strike seven of Dr. Stockman's opinions,
labeled as "Assessment[s]" in her Expert Report (Rec. Doc. 477-4, pp.11-12):
Opinion Nos. 1 (in part), 3, 4, 5, 8, 9, and 12. (Rec. Doc. 477-1, p. 3)
4
The Court agrees that certain opinions of Dr. Stockman are
outside the scope of opinions offered by Dr. Sawyer, contrary to
the opinions of Dr. Sawyer, and contrary to prior rulings of this
Court. First, Dr. Sawyer opined in his report that the history of
Sally
Vedros's
Hurthle
cell
carcinoma
"is
[not]
considered
relevant to the risk of mesothelioma in this case." (Rec. Doc.
477-5, p. 2) In contrast, Dr. Stockman's report discusses the
association of Hurthle cell carcinoma and mesothelioma with the
genetic mutation informally known as "TERT" and opines that "it
is biologically plausible that both malignancies were the result
of this genetic mutation." (Rec. Doc. 477-4, pp.9, 11-12)
Second, Dr. Sawyer opined that asbestos exposure "is the
only
etiology
to
rationally
consider,
and
fully
explains
[Vedros's] mesothelioma risk." (Rec. Doc. 477-5, p. 6) Moreover,
this Court has previously determined that "Sally Vedros died as a
result of mesothelioma resulting from asbestos exposure." (Rec.
Doc. 294, p. 2) Despite this, Dr. Stockman's report discusses
"mesothelioma unrelated to asbestos exposure" and she opines that
certain
aspects
of
Vedros's
case
"make
[asbestos-related
mesothelioma] less likely." (Rec. Doc. 477-4, pp. 8, 11)
5
Lastly, Westinghouse admits that Dr. Stockman's opinions as
to whether paraoccupational and occupational exposure contributed
to the development of Vedros's mesothelioma contradict those of
Dr. Sawyer. (Rec. Doc. 496, p. 4) The Court agrees. In contrast
to Dr. Sawyer, Dr. Stockman opines that washing her father's
clothing and working as a punch operator at Avondale did not
cause or contribute to Vedros's mesothelioma. (Rec. Doc. 477-4,
pp. 11-12)
The Court finds that the foregoing opinions of Dr. Stockman
deviate
from
those
of
Dr.
Sawyer
in
a
way
that
unfairly
prejudices Plaintiffs. The decision to allow a substitute expert
to testify was based on the understanding that the substitute
report and testimony would not go beyond the original expert's
report and testimony and that the substitute would testify to the
same
conclusions.
Such
a
compromise
allowed
Westinghouse
to
replace its expert without unfairly surprising Plaintiffs with
unexpected new opinions.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Strike Certain
Opinions of Dr. Gail Stockman Which Are Outside the Scope of
Opinions Offered by Dr. Robert Sawyer, Which Are Contrary to the
6
Opinions of Dr. Robert Sawyer, and Which Are Contrary to Prior
Rulings Already Rendered by This Court (Rec. Doc. 477) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiffs' Motion for Leave to
File Reply Memorandum in Support of Plaintiffs' Motion to Strike
(Rec. Doc. 501) is DENIED as moot.
New Orleans, Louisiana, this 1st day of July, 2015.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
7
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