Vedros v. Northrop Grumman et al

Filing 618

ORDER AND REASONS. It is ORDERED that the Motion to Exclude Certain Testimony of Dr. Stephen Terry Kraus (Rec. Doc. 517 ) is GRANTED in part and DENIED in part. It is FURTHER ORDERED that the Motion to Exclude Causation Opinions Regarding Ben jamin Foster Products Based on the "No Safe Level of Exposure" Theory (Rec. Doc. 518 ) is GRANTED in part and DENIED in part. At trial, Dr. Kraus may not offer specific causation testimony based on the "every exposure above backgro und" theory, or any similar theory, that Vedros's mesothelioma was caused by any particular exposure to a defendant's product or premises. Dr. Kraus may opine regarding Vedros's diagnosis of mesothelioma and issues of general causation. Signed by Judge Carl Barbier. (gec)

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 & REASONS
Before the Court is a Motion to Exclude Certain Testimony
of Dr. Stephen Terry Kraus (Rec. Doc. 517) filed by Defendants
Northrop

Grumman

Bossier,

Jr.,

Shipbuilding,

and

J.

Melton

Inc.

(“Avondale’),

Garrett,

and

Albert

OneBeacon

L.

America

Insurance Company and American Employers Insurance Company in
their

capacities

executive

as

officers

supplemental

alleged

(collectively

memorandum

McCarty

Corporation

Eagle’s

alleged

insurers

in

support

(“McCarty”),

insurers,

the

of

“Avondale
filed

Eagle,

OneBeacon

Avondale’s

alleged

Interests”),

a

by

Defendants

The

Inc.

(“Eagle”),

and

America

Insurance

Company

and American Employers Insurance Company, who joined and adopted
the Avondale Interests motion (Rec. Doc. 554), an opposition
thereto filed by Plaintiffs (Rec. Doc. 558), a reply filed by
McCarty and Eagle (Rec. Doc. 580), a Motion to Exclude Causation
Opinions Regarding Benjamin Foster Products Based on the “No
Safe

Level

of

Exposure”

Theory

(Rec.

Doc.

518)

filed

by

Defendant Bayer CropScience, Inc., as Successor to Rhone-Poulene

AG Company, f/k/a Amchem Products, Inc., f/k/a Benjamin Foster
Company (“Amchem”), an opposition thereto filed by Plaintiffs
(Rec. Doc. 534), a reply filed by Amchem (Rec. Doc. 585), and a
sur-reply

filed

by

Plaintiffs

(Rec.

589). 1

Doc.

Having

considered the motions and legal memoranda, the record, and the
applicable

law,

the

Court

finds

that

the

motion

should

be

GRANTED in part and DENIED in part.
FACTS AND PROCEDURAL 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.
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

1

to

asbestos

while

she

Additionally, Defendants Maryland Casualty Company and the Continental
Insurance Company joined and adopted the Avondale Interests’ Motion (Rec.
Doc. 517), the supplemental memorandum (Rec. Doc. 554), and Amchem’s Motion
(Rec. Doc. 518). (Rec. Doc. 543)

2

worked at Avondale. Before her death, Vedros filed suit against
many defendants, and after her death, her children joined the
suit as Plaintiffs.
In

preparation

for

trial,

Plaintiffs

originally

retained Dr. Samuel Hammar, a preeminent pathologist, to testify
to Vedros’s medical condition and the cause of same. However,
due

to

Dr.

Hammar’s

unavailability

to

provide

deposition

or

trial testimony, the Court allowed Plaintiffs to replace Dr.
Hammar with Dr. Stephen Terry Kraus, a board-certified radiation
oncologist.

Dr.

Kraus

received

his

medical

degree

from

the

University of Cincinnati College of Medicine. He has served as
the medical director for the Department of Radiation Oncology at
Tulane Cancer Center, and he has been treating patients with
cancer, including malignant mesothelioma, since 1982.
To prepare his expert report, Dr. Kraus reviewed scientific
and medical literature regarding asbestos and asbestos-related
diseases, Vedros’s medical records, and deposition testimony of
Vedros, Janes Champagne, Gerald Vedros, Lori Vedros Kravet, and
Bobby Jambon. Dr. Kraus’s expert report details his opinions
regarding

Vedros’s

relationship

between

exposure
her

to

exposure

asbestos
and

her

and

the

causal

mesothelioma.

For

example, Dr. Kraus opined that “domestic or para occupational
asbestos exposure ‘is all that is required for mesothelioma to
be

asbestos

related.’”

He

further

3

quoted

The

Congressional

Record, October 2007, as follows: “There is no known safe level
of asbestos exposure.” In addition, he opined that “[t]here is
no proof or evidence of a threshold value of occupational or
para

occupational

exposure

to

asbestos

that

could

cause

malignant mesothelioma.” (Rec. Doc. 518-2, pp. 5-6)
The

Defendants

requesting

that

have

the

Court

now

filed

exclude

the

at

instant

trial

the

motions
causation

opinions of Plaintiffs’ medical expert, Dr. Kraus, because he is
unqualified

as

an

expert

and

his

methodology

for

specific

causation is unreliable, speculative, unfairly prejudicial, and
contrary to Louisiana law.
PARTIES’ ARGUMENTS
Defendants present several arguments in support of their
motions

to

exclude

Dr.

Kraus’s

causation

opinions

at

trial.

First, they argue that Dr. Kraus is not qualified to testify as
an

expert

in

this

matter,

because

he

cannot

diagnose

mesothelioma, he has never written an article regarding asbestos
or diseases caused by asbestos, and his training and expertise
in

the

field

of

radiation

oncology

does

not

qualify

him

to

assess the genesis of a mesothelioma to a reasonable degree of
scientific

certainty.

Second,

Defendants

argue

that

Kraus’s

causation opinions are not sufficiently reliable to be admitted,

4

because they are based on the flawed “Every Exposure” 2 Theory.
Defendants
purely

contend

speculative

that

Dr.

because

Kraus’s
he

did

causation
nothing

opinions

to

are

characterize

Vedros’s alleged exposure to certain products and therefore has
no basis to conclude that the alleged exposure was actually a
substantial

factor

Defendants

contend

engineered

and

in

causing

that

based

on

her

Dr.

mesothelioma.

Kraus’s

flawed

logic

opinions
rather

Furthermore,
are

than

reverse

scientific

knowledge or expertise. 3
In response, Plaintiffs argue that Dr. Kraus is eminently
qualified
because

to

offer

causation

medical
is

causation

within

his

opinions

purview

as

in

this
a

case,

radiation

oncologist and he is intimately familiar with the scientific and
medical literature in this regard. Next, Plaintiffs argue that
Dr. Kraus does not rely upon a “no safe level exposure” theory
or an “every exposure” theory, but rather Dr. Kraus’s opinion is
that “it takes occupational and/or para-occupational exposures
to

asbestos

(i.e.

exposures

above

background)”

to

cause

2
The theory that Defendants refer to has other names, including “No Safe
Level of Exposure,” “Each and Every Exposure,” “Any Exposure,” and “Single
Fiber.” All theories have as their basis the principle that all exposures to
asbestos should be included as a cause of mesothelioma because there is no
way to know which exposures caused it and which ones did not.
3
In a footnote to its motion, Amchem states that its “motion is intended to
apply to any other witness who might offer causation opinions relating to
Benjamin Foster products
based on the ‘each and every exposure’ theory,
including Dr. Arnold Brody and/or Mr. Frank Parker.” (Rec. Doc. 518-1, p. 2
n.3) However, because the deadline for filing motions in limine regarding the
admissibility of expert testimony of anyone other than Dr. Kraus has passed,
the Court does not consider these arguments.

5

mesothelioma. Dr. Kraus’s theory and opinions, Plaintiffs argue,
are supported by the peer-reviewed, published literature, and
this theory has been recognized as valid by Louisiana courts.
Moreover, Plaintiffs contend that the Defendants are asking this
Court to require Dr. Kraus to opine as to a specific dose of
asbestos that Vedros may have sustained from certain products,
which is not required under Louisiana law. 4
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

Pharmaceuticals,
analytical

testimony

is

Court's
Inc.,

framework

admissible

under

decision

509

for
Rule

U.S.

in
579

determining
702.

Both

scientific and nonscientific expert testimony are subject to the

4

Plaintiffs also spend portions of their oppositions and sur-replies arguing
that Dr. Paustenbach, one of Amchem’s experts, relies on an “every exposure”
theory. Because the deadline for filing motions in limine regarding the
admissibility of expert testimony of Dr. Paustenbach has passed, the Court
does not consider this argument.

6

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.

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.

determined

by

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

reliability

of

expert

testimony

“is

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
technique's
generally

and

maintenance

operation,
accepted

in

and
the

of

standards

(5)

whether

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.

7

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

to

trial
test

judge
an

has

expert's

considerable
reliability.”)

leeway

in

(internal

quotation marks omitted).
DISCUSSION
A.

Dr. Kraus’s Qualifications as an Expert
First, the Court must determine whether Dr. Kraus has the

expertise to assess the causation of Vedros’s mesothelioma. To
qualify as an expert, “the witness must have such knowledge or
experience in [his] field or calling as to make it appear that
his opinion or inference will probably aid the trier in his
search for truth.” United States v. Hicks, 389 F.3d 514, 524
(5th Cir. 2004) (quoting United States v. Bourgeois, 950 F.2d
980, 987 (5th Cir. 1992)). Additionally, Rule 702 states that an
expert may be qualified based on “knowledge, skill, experience,
training, or education.” Hicks, 389 F.3d at 524; see also Kumho
Tire Co., 526 U.S. at 147 (discussing witnesses whose expertise
is based purely on experience). “A district court should refuse
to allow an expert witness to testify if it finds that the
witness is not qualified to testify in a particular field or on
a given subject.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.
2009) (quoting Wilson v. Woods, 163 F.3d 935, 937 (5th Cir.
1999)). However, “Rule 702 does not mandate that an expert be

8

highly

qualified

Differences
assigned

in

to

in

order

expertise

the

to

testify

about

bear

chiefly

on

testimony

by

the

trier

a

the
of

given
weight

fact,

issue.
to

not

be
its

admissibility.” Id. (citing Daubert, 509 U.S. at 596).
In support of their motion, Defendants highlight the “stark
contrast in qualifications between Dr. Kraus and Dr. Hammar,”
Plaintiffs’ original causation expert. (Rec. Doc. 554, p. 9) The
qualifications of Dr. Hammar, however, are irrelevant to the
issue of whether Dr. Kraus is qualified to testify as an expert
in this matter. Defendants’ also rely heavily on Dr. Kraus’s
lack

of

specialization

toxicology.

However,

in

“[a]

epidemiology,
lack

of

pathology,

specialization

and

should

generally go to the weight of the evidence, rather than its
admissibility.” United States v. Wen Chyu Liu, 716 F.3d 159, 168
(5th Cir. 2013). “[V]igorous 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). “Thus ‘an expert witness is not strictly confined to
his

area

of

practice,

applications;

a

admissibility

of

lack
the

but

of

may

testify

specialization

opinion,

but

concerning

does

only

its

not

related

affect

the

weight.’”

Id.

(quoting Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th
Cir. 1991)).

9

Here, Dr. Kraus has a medical degree and is board certified
in

radiation

oncology.

He

has

been

treating

patients

with

mesothelioma for more than three decades. He has served as the
medical director for the Department of Radiation Oncology at the
Tulane Cancer Center, where he had both a clinical practice and
teaching duties. Moreover, Dr. Kraus has reviewed scientific and
medical

literature

diseases

as

well

regarding
as

asbestos

Vedros’s

and

medical

asbestos

records

and

related

deposition

testimony. Accordingly, the Court concludes that Dr. Kraus is
sufficiently

qualified

to

offer

expert

testimony

regarding

causation, provided that those opinions meet the standard of
reliability required under Rule 702 and Daubert. Defendants are
free

to

challenge

any

perceived

lack

of

expertise

on

cross-

examination.
B.

Reliability of Dr. Kraus’s Causation Opinions
Next,

causation
under

the

opinions

Federal

exposure”

Court

are

Rule

theory

considers

Dr.

sufficiently

reliable

Evidence

of

has

whether

and

been

702

advanced

by

Kraus’s
to

be

Daubert.

specific
admitted

The

plaintiffs

“every

and

their

experts in a number of recent cases. See Joseph Sanders, The
"Every

Exposure"

Cases

and

the

Beginning

of

the

Asbestos

Endgame, 88 Tul. L. Rev. 1153, 1157 (2014). The “every exposure”
theory

“represents

the

viewpoint

that,

because

science

has

failed to establish that any specific dosage of asbestos causes

10

injury, every exposure to asbestos should be considered a cause
of

injury.”

Yates

v.

Ford

Motor

Co.,

No.

12-752,

2015

WL

3948303, at *2 (E.D.N.C. June 29, 2015); see also Krik v. Crane
Co., No. 10-7435, 2014 WL 7330901, at *2 (N.D. Ill. Dec. 22,
2014). The judicial reception to this theory has been largely
negative.
evidence

Numerous
grounded

courts
in

this

have

excluded

theory,

expert

reasoning

testimony

that

it

or

lacks

sufficient support in facts and data. See, e.g., Yates, 2015 WL
3948303, at *3; Comardelle v. Pa. Gen. Ins. Co., No. 13-6555,
2015 WL 64279, at *4 (E.D. La. Jan. 5, 2015); Krik, 2014 WL
7330901, at *4; Davidson v. Ga. Pac. LLC, No. 12-1463, 2014 WL
3510268, at *5 (W.D. La. July 14, 2014); Anderson v. Ford Motor
Co., 950 F. Supp. 2d 1217, 1225 (D. Utah 2013); Sclafani v. Air
& Liquid Sys. Corp., No. 12-3013, 2013 WL 2477077, at *5 (C.D.
Cal. May 9, 2013); Smith v. Ford Motor Co., No. 8-630, 2013 WL
214378, at *2 (D. Utah Jan. 18, 2013). Likewise, applying the
Daubert factors, courts have found that the theory cannot be
tested, has not been published in peer-reviewed works, and has
no known error rate. E.g., Yates, 2015 WL 3948303, at *3.
In Comardelle v. Pennsylvania General Insurance Co., Judge
Africk

held

that

Dr.

Hammar’s

proposed

specific

causation

opinions, based on the “every exposure” theory, were unreliable
and inadmissible, agreeing with the growing number of opinions

11

from other courts that have reached a similar result. 2015 WL
64279, at *4. In its reasoning, the court stated:
Although there may be no known safe level of
asbestos exposure, this does not support Dr. Hammar's
leap to the conclusion that therefore every exposure
Comardelle
had
to
asbestos
must
have
been
a
substantial contributing cause of his mesothelioma.
The Court agrees that this “is not an acceptable
approach for a causation expert to take[,]” and it is
“precisely the kind of testimony the Supreme Court in
General Electric Co. v. Joiner . . . observed as being
nothing more than the ‘ipse dixit of the expert.’”
This kind of blanket specific causation opinion is not
based
on
or
tied
to
the
specific
facts
and
circumstances of any of Comardelle's exposures to
asbestos and it elides any differences or nuances of
duration, concentration, exposure, and the properties
of the fibers to which he may have been exposed. The
Court is not persuaded that such a one-size-fits-all
approach is reliable expert testimony.
Id. (footnotes omitted) (citations omitted).
In

their

opposition,

Plaintiffs

do

not

argue

that

the

“every exposure” theory is admissible. Instead they take great
effort

to

distinguish

Dr.

Kraus’s

theory

from

the

“every

exposure” theory, on the grounds that Dr. Kraus made clear in
his report that “[b]ackground asbestos exposure is negligible
and not a factor in developing malignant mesothelioma.” (Rec.
Doc. 534, pp. 13-17) In other words, Plaintiffs argue that Dr.
Kraus does not espouse an “every exposure” theory, but rather an
“every exposure above background” theory.
The

Court

finds

no

meaningful

distinction

between

the

“every exposure” theory and an “every exposure above background”

12

theory. For example, in Yates v. Ford Motor Co., Dr. Arnold
Brody opined that “[e]ach and every exposure to asbestos that an
individual

with

mesothelioma

experienced

in

excess

of

a

background level contributes to the development of the disease.”
2015 WL 3948303, at *3. Like the Plaintiffs in the instant case,
the plaintiffs in Yates argued that Dr. Brody did not espouse
the

“every

exposure”

theory.

Id.

at

*4.

However,

the

court

disagreed, reasoning that “[Dr. Brody’s] references to exposures
‘above background’ do not meaningfully distinguish his theory
from other ‘each and every exposure,’ theories, because the same
shortcomings

that

plague

the

latter

equally

apply

to

the

former.” Id.; see also Comardelle, 2015 WL 64279, at *3 n.12
(excluding
control

“above

the

epidemiology

2477077,

at

*5

concentration
studies”

(excluding

identified

opinion);
“above

in

the

Sclafani,

case-

2013

background”

WL

opinion);

Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1165-66
(E.D.

Wash.

2009)

(excluding

“above

background”

opinion).

Moreover, the court in Yates noted that “[a]t any rate, ‘above
background’ is an amorphous concept.” 2015 WL 3948303, at *4.
Therefore,

the

same

reasons

articulated

by

the

thoughtful

opinions in Yates, Comardelle, and the cases cited therein apply
to the “every exposure above background” theory.
In

this

case,

Plaintiffs,

as

the

proponents

of

the

testimony, have not shown that Dr. Kraus’s specific causation

13

opinions have the sufficient support of facts or data, nor have
they

shown

that

his

“above

background”

theory

is

testable,

published in peer-reviewed works, or has any error rate. Instead
of

explaining

how

Dr.

Kraus

can

reliably

opine

that

any

particular exposure to a Defendant’s product or premises was a
cause of Vedros’s mesothelioma, Plaintiffs refer cursorily to a
broad array of cases, studies, and regulatory materials. (Rec.
Doc.

534,

pp.

6-9,

13-19)

For

example,

one

of

the

articles

Plaintiffs cite in support is an article authored by Laura S.
Welch entitled Asbestos Exposure Causes Mesothelioma, But Not
This Asbestos Exposure: An Amicus Brief to the Michigan Supreme
Court, 13 Int'l. J. Occupational Envtl. Health 318 (2007). (Rec.
Doc. 534-5) However, courts have held that “this document, which
was initially prepared for purposes of litigation, is not one
that ‘experts in the particular field would reasonably rely on’
for purposes of satisfying Federal Rule of Evidence 703.” Yates,
2015 WL 3948303, at *3.
Plaintiffs also rely heavily on the recent Louisiana First
Circuit Court of Appeal decision in Robertson v. Doug Ashy Bldg.
Materials, Inc., No. 14-0141, 2014 WL 7277688 (La. App. 1 Cir.
2014). In Robertson, the court held that the trial court abused
its discretion in prohibiting plaintiff’s expert from testifying
that

each

“special”

exposure

to

asbestos

constituted

a

significant contributing factor. Id. at *14. The court pointed

14

out

that

both

the

mischaracterized

the

defendant

and

substance

of

the
the

trial

court

expert’s

had

testimony.

According to the court, the expert did not espouse an “every
exposure

above

background”

theory.

The

court

reasoned

that

“special exposure,” the term used by the expert, “was intended
to reflect the exposures that Dr. Mark considered, based on a
qualitative

cumulative

assessment

of

the

exposures,

to

have

substantially contributed to causing mesothelioma.” Id. at 15.
Thus, the court found that “the term ‘special exposure’ was a
phrase

chosen

by

Dr.

Mark

to

express

the

results

of

his

methodology for determining causation of mesothelioma; it was
not part of his methodology.” Id.
The

Plaintiffs

reliance

on

Robertson,

however,

is

misplaced. Louisiana courts, including the court in Robertson,
require the claimant in an asbestos case to show that he had
significant exposure to the product complained of to the extent
that it was a substantial factor in bringing about his injury.
Id. at 6. “In meeting this burden of proof, the plaintiff is not
required to prove the quantitative level of exposure, i.e., the
exact

or

cumulative

dose

of

asbestos

.

.

.

.

Rather,

a

qualitative evaluation of the exposures to asbestos, i.e., the
level,

frequency,

nature,

proximity,

and

duration

of

the

exposures at issue, can sufficiently prove causation.” Id. The
court in Robertson found that the expert employed a reliable

15

methodology based on an extensive qualitative evaluation of the
plaintiff’s specific history of asbestos exposure to determine
which

exposures

substantially

contributed

to

causing

mesothelioma, which he referred to as “special” exposures. 5 Id.
at 15.
Here,

Dr.

Kraus

fails

to

provide

a

similar

qualitative

evaluation of Vedros’s specific history of exposures in forming
his specific causation opinions. Instead, Dr. Kraus testified
that

exposure

becomes

significant

“[i]f

you

develop

mesothelioma.” (Rec. Doc. 585-1, p. 43) Similarly, Dr. Kraus
testified that “if someone develops malignant mesothelioma and
they

have

caused

the

an

asbestos

malignant

exposure,

that

mesothelioma.”

asbestos

(Rec.

Doc.

exposure
554-1,

p.

has
7)

Notably, when asked whether, by including all exposures above
background,

Dr.

Kraus

would

be

including

exposures

that,

in

fact, did not cause the disease, Dr. Kraus answered “who knows?
I can’t answer that question of which ones are causative and
which

ones

are

not.

.

.

.

All

I

can

say

is

they

are

all

causative. Every incidence of asbestos exposure is causative.”
(Rec. Doc. 554-1, pp. 17-18)
5

In Robertson, Dr. Mark considered a number of factors, including “the nature
of exposure, the level of exposure and the duration of exposure, whether a
product gives off respirable asbestos fibers, whether a person was close or
far from the source of fiber released, how frequently the exposure took
place, how long the exposure lasted, whether engineering or other methods of
dust control were in place, whether respiratory protection was used, the
chemistry and physics of asbestos fibers, the pathophysiology of breathing;
the movement of asbestos fibers in the lung, the molecular pathology of tumor
development, and other scientific disciplines.” 2014 WL 7277688, at *10.

16

Plaintiffs
sources

cited.

overstate
Many

of

or
the

misstate

the

Plaintiffs

relevance

arguments

and

of

the

sources

cited support Dr. Kraus’s opinions on general causation rather
than specific causation. 6 Just as in Comardelle, “none of those
citations plug the impermissible gap in Dr. [Kraus’s] reasoning
from the general causation proposition that exposure to asbestos
increases the risk of mesothelioma, to the specific causation
opinion that in this case [Vedros’s] exposure to [a particular
Defendant’s product] was a cause of [her] mesothelioma giving
rise to liability.” Comardelle, 2015 WL 64279, at *4; see also
Anderson, 950 F. Supp. 2d at 1225 (excluding testimony despite
plaintiff's

citation

to

“numerous

scholarly

articles

and

scientific studies” because those materials were not specific to
“the

type

of

exposure

Mr.

Anderson

had

to

Defendants'

products”). Accordingly, the Court concludes that Dr. Kraus’s
specific causation opinions are an unreliable product of the
“every exposure above background” theory and must be excluded.
CONCLUSION
Accordingly,
6

“‘General causation is whether a substance is capable of causing a
particular injury or condition in the general population, while specific
causation is whether a substance caused a particular individual's injury.’”
Comardelle, 2015 WL 64279, at *1 n.10 (quoting Knight v. Kirby Inland Marine
Inc., 482 F.3d 347, 351 (5th Cir. 2007)). Louisiana law recognizes this
distinction. See, e.g., Zimko v. Am. Cyanamid, 905 So. 2d 465, 485–86 (La.
App. 4 Cir. 2005) (“Alternatively, American Cyanamid contends that Mrs.
Zimko's experts, at best, established general causation—that asbestos fibers
a worker brings home can cause disease—not specific causation—that asbestos
fibers from American Cyanamid's facility actually caused Kenneth Zimko's
mesothelioma.”).

17

IT IS HEREBY ORDERED that the Motion to Exclude Certain
Testimony of Dr. Stephen Terry Kraus (Rec. Doc. 517) is GRANTED
in part and DENIED in part.
IT IS FURTHER ORDERED that the Motion to Exclude Causation
Opinions Regarding Benjamin Foster Products Based on the “No
Safe Level of Exposure” Theory (Rec. Doc. 518) is GRANTED in
part and DENIED in part. At trial, Dr. Kraus may not offer
specific causation testimony based on the “every exposure above
background”
mesothelioma

theory,
was

or

caused

any
by

similar
any

theory,

particular

that

Vedros’s

exposure

to

a

defendant’s product or premises. Dr. Kraus may opine regarding
Vedros’s

diagnosis

of

mesothelioma

and

issues

of

general

causation.
New Orleans, Louisiana this 4th day of August, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

18