Comardelle v. Pennsylvania General Insurance Company et al

Filing 579

ORDER AND REASONS denying 431 MOTION in Limine to Exclude the Testimony of Samuel P. Hammar M.D. and Motion for Summary Judgment on the Issue of Causation. Signed by Judge Lance M Africk on 12/15/2014.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MICHAEL COMARDELLE

CIVIL ACTION

VERSUS

No. 13-6555

PENNSYLVANIA GENERAL INSURANCE
COMPANY ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion1 filed by defendant, Union Carbide Corporation (“Union
Carbide”), seeking (1) to exclude the testimony of plaintiffs’ expert, Dr. Samuel Hammar; and
(2) summary judgment on the issue of causation, as plaintiffs allegedly have no evidence of
exposure to asbestos at Union Carbide’s facility. Plaintiffs oppose the motion.2 For the following
reasons, the motion is DENIED.
BACKGROUND
Plaintiffs allege that decedent, Michael Comardelle (“Comardelle”), was “exposed to
asbestos and asbestos-containing products manufactured, distributed, and sold” by defendants
during the course of his employment from 1963 through 1979.3 Plaintiffs allege, “As a result of
these exposures to toxic substances, including asbestos, [Comardelle] contracted cancer,
mesothelioma, and lung cancer, which was first diagnosed on approximately September 25,
2013.”4 Comardelle died on May 3, 2014, and his widow and children were substituted as
plaintiffs.5

1

R. Doc. No. 431.
R. Doc. No. 452.
3
R. Doc. No. 1-2, ¶¶ 6, 66
4
R. Doc. No. 1-2, ¶ 9.
5
R. Doc. No. 100.
2

Among a myriad of other claims, plaintiffs allege that Comardelle was exposed to
asbestos while working at a Union Carbide facility beginning in 1973.6 Union Carbide asserts
that Dr. Hammar’s testimony should be excluded pursuant to Daubert,7 and that without such
testimony, the claims against it should be dismissed as plaintiffs have no evidence that
Comardelle was exposed to asbestos at Union Carbide’s facility.8
LAW AND ANALYSIS
The Court first addresses the potentially dispositive portion of the motion.9
I.

Summary Judgment

Summary judgment is proper when, after reviewing the pleadings, the discovery and
disclosure materials on file, and any affidavits, the court determines that there is no genuine issue
of material fact. See Fed. R. Civ. P. 56. “[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis for its motion and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary
judgment need not produce evidence negating the existence of material fact, but need only point

6

See R. Doc. No. 1-2, ¶ 66.
R. Doc. No. 431-1, at 4-16.
8
R. Doc. No. 431-1, at 16.
9
The Court notes that plaintiffs assert: “To plaintiffs[’] knowledge, Union Carbide never
scheduled a conference regarding any motion for summary judgment. Accordingly, plaintiffs
submit that this motion has been filed in violation of this Court’s order and should be denied on
this basis alone.” R. Doc. No. 452, at 1; see also R. Doc. No. 137, at 2; R. Doc. No. 191, at 2.
The Court also notes that Union Carbide’s memorandum in support of its motion contains a
single sentence of argument regarding its basis for summary judgment, R. Doc. No. 431-1, at 16,
though its reply memorandum contains further development of its position. Nonetheless, despite
the alleged violation of this Court’s scheduling order, and despite the wholly inadequate briefing
of the summary judgment issue in Union Carbide’s opening memorandum, the Court exercises
its discretion to consider Union Carbide’s argument.
7

2

out the absence of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn Co., 780
F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking summary judgment carries its burden pursuant to Rule 56, the
nonmoving party must come forward with specific facts showing that there is a genuine issue of
material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). The showing of a genuine issue is not satisfied by creating “‘some metaphysical doubt as
to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a
‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations
omitted). Instead, a genuine issue of material fact exists when the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment may not
rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The
nonmoving party’s evidence, however, “is to be believed, and all justifiable inferences are to be
drawn in [the nonmoving party’s] favor.” Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541,
552 (1999).
Union Carbide contends: “Dr. Hamm[a]r cannot opine that Mr. Co[m]ardelle’s work at
Union Carbide was a substantial contributing cause of his mesothelioma. Without such proof,
Union Carbide is entitled to dismissal on summary judgment.”10 Union Carbide further argues in
its reply memorandum that plaintiffs do not have any evidence to suggest that “any of the
insulation [Comardelle] worked around actually contained asbestos,” and that “[t]he
corroborating evidence in this case establishes that in 1972, Union Carbide discontinued the use

10

R. Doc. No. 431-1, at 16.
3

of asbestos containing insulation and put procedures in place that would have not allowed Mr.
Comardelle in the area where insulators were removing insulation that contained asbestos.”11
Plaintiffs contend12 that Comardelle testified that he worked alongside insulators at
Union Carbide’s facility and that when old insulation was removed, he was exposed to insulation
dust.13 Comardelle noted that “a lot of times they [the insulators] would take insulation down for
us to mount instruments to piping or a boiler.”14 Plaintiffs also provide the testimony of Clifton
Shewmaker, an insulator who worked at the Union Carbide facility both during its construction
and during the time period that Comardelle worked there.15 Shewmaker testified that the original
insulation at Union Carbide contained asbestos and that subsequent containment measures were
not used and/or were subject to lax enforcement.16 The Court further notes that plaintiffs
produced a Union Carbide document stating that asbestos-containing insulation was used in
cable trays,17 and Comardelle testified that he was present and working on these cable trays
while the insulation was being cut to size.18 Plaintiffs’ expert, Frank Parker, III, concluded that

11

R. Doc. No. 552, at 4 (emphasis omitted). Union Carbide’s representative, Ted Porada,
testified that much of the original insulation at the facility most likely contained asbestos. R.
Doc. No. 453-6, at 5-6.
12
R. Doc. No. 452, at 2-10.
13
R. Doc. No. 452-4, at 21-29, 32-35.
14
R. Doc. No. 452-4, at 26-27.
15
R. Doc. No. 452, at 4; see also R. Doc. No. 452-11. Union Carbide objects that Shewmaker
has not been deposed in this case. R. Doc. No. 552, at 13. Shewmaker was, however, listed on
plaintiffs’ witness list. R. Doc. No. 303, at 9. Union Carbide also states that Shewmaker’s
testimony is “intentionally misleading and completely irrelevant to this case.” R. Doc. No. 552,
at 13. Union Carbide provides no support for this assertion, which, like much of its briefing, is
needlessly inflammatory and unhelpful to the Court.
16
R. Doc. No. 452-11, at 4-5, 7, 10-11.
17
R. Doc. No. 452-9, at 1.
18
R. Doc. No. 452-4, at 51-54.
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Comardelle’s exposures at the Union Carbide facility significantly increased his risk of
developing mesothelioma.19
The Court need not examine in detail the rest of the parties’ evidence because it is clear
that a genuine issue of material fact precludes summary judgment on the issue of Comardelle’s
exposure to asbestos at Union Carbide’s facility. Accordingly, the Court now turns to Union
Carbide’s Daubert argument regarding Dr. Hammar.
II.

Daubert

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness
testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993); United States v.
Hitt, 473 F.3d 146, 148 (5th Cir. 2006). Rule 702 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 in issue;
(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.
“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
19

R. Doc. No. 452-5, at 5-6. The Court notes that Union Carbide has filed a motion to exclude
Parker’s testimony, R. Doc. No. 421, as has defendant, Bayer CropScience, Inc., R. Doc. No.
408. The Court makes no ruling or comment with respect to these motions.
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524; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (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 highly qualified in order to testify about a given issue. Differences in
expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its
admissibility.” Id.; see Daubert, 509 U.S. at 596.
The U.S. Supreme Court’s decision in Daubert “provides the analytical framework for
determining whether expert testimony is admissible under Rule 702.” Pipitone v. Biomatrix, Inc.,
288 F.3d 239, 243 (5th Cir. 2002). Both scientific and nonscientific expert testimony is subject to
the Daubert framework, which requires trial courts to make a preliminary assessment to
“determine 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 Kumho Tire, 526 U.S. at 147.
A number of nonexclusive factors may be relevant to the reliability inquiry, including: (1)
whether the technique 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 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

6

‘how to test an expert’s reliability.’”). “Both the determination of reliability itself and the factors
taken into account are left to the discretion of the district court consistent with its gatekeeping
function under [Rule] 702.” Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000).
With respect to determining the relevancy of an expert’s testimony pursuant to Rule 702
and Daubert, the proposed 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). “There is no more certain test for determining when
experts may be used than the common sense inquiry whether the untrained layman would be
qualified to determine intelligently and to the best degree the particular issue without
enlightenment from those having a specialized understanding of the subject involved in the
dispute.” Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir. 2003) (quoting Fed. R. Evid. 702
advisory committee’s note).
Dr. Hammar is a pathologist,20 and Union Carbide’s motion does not challenge his
qualifications. Rather, Union Carbide argues that (1) Dr. Hammar’s opinions about the cause of
Comardelle’s mesothelioma are not based on sufficient facts and data,21 (2) Dr. Hammar did not
obtain an adequate asbestos exposure history pursuant to guidelines established by the Agency
for Toxic Substances and Disease Registry (“ATSDR”),22 and (3) Dr. Hammar testified that he
did not have any information as to whether Comardelle was exposed to elevated levels of

20

R. Doc. No. 431-4, at 11.
R. Doc. No. 431-1, at 7.
22
R. Doc. No. 431-1, at 12.
21

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asbestos at Union Carbide or whether his exposure was “above any applicable regulatory
standards.”23
Union Carbide’s challenges are meritless. First, Dr. Hammar reviewed an abundance of
pathology material and medical records in compiling his report24 and, as Union Carbide
acknowledges, he reviewed Comardelle’s testimony before his deposition.25 Union Carbide has
not provided any evidence that Dr. Hammar’s methodology is unreliable or that he cannot
reliably draw conclusions from the material that he reviewed.
Second, Union Carbide has not provided any evidence regarding the significance or
necessity of using ATSDR’s exposure history guidelines or how such guidelines relate to Dr.
Hammar’s pathological study. Without any evidence that Dr. Hammar’s opinions are unreliable
or insufficient because he improperly relied on Comardelle’s deposition and medical records
when evaluating Comardelle’s exposure history, the Court will not exclude his testimony for his
alleged failure to comply with the ATSDR guidelines.
Third, Dr. Hammar’s lack of information about the details of Comardelle’s exposure at
Union Carbide is irrelevant because his report does not contain any conclusions regarding
specific causation as to Union Carbide.26 As discussed above, plaintiffs have provided enough
evidence regarding Comardelle’s exposure at Union Carbide from sources other than Dr.
Hammar to raise a genuine issue of material fact. Moreover, Dr. Hammar need not know whether
the asbestos concentrations at Union Carbide reached a particular level in order to offer an
opinion as to causation. See Robertson v. Doug Ashy Bldg. Materials, Inc., 77 So. 3d 339, 359
(La. App. 1 Cir. 2011) (citing Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1091 (La. 2009))
23

R. Doc. No. 431-1, at 16.
R. Doc. No. 431-4, at 1-8.
25
R. Doc. No. 431-1, at 3.
26
See R. Doc. No. 431-4.
24

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(“[W]e 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.”).
In sum, the Court finds that Union Carbide’s arguments are more properly addressed to
the weight of Dr. Hammar’s testimony rather than its admissibility. The Court emphasizes that
nothing in this order will preclude Union Carbide from cross-examining Dr. Hammar or
presenting evidence regarding the issues raised in its motion.
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the motion is DENIED.

New Orleans, Louisiana, December 15, 2014.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

9