Bell v. Foster Wheeler Energy Corporation, et al

Filing 432

ORDER AND REASONS denying 378 MOTION for Reconsideration re 358 Court Order. Signed by Judge Lance M Africk. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM C. BELL ET AL.

CIVIL ACTION

VERSUS

No. 15-6394

FOSTER WHEELER ENERGY
CORP. ET AL.

SECTION I

ORDER AND REASONS
Before the Court is the plaintiffs’ motion 1 for reconsideration of this Court’s
order 2 excluding the specific causation opinions of plaintiffs’ medical experts. In its
previous order, the Court ruled:
The Court will not allow plaintiffs’ experts to entirely rely on evidence of
general causation to offer the “specific causation opinion in this case” that a
particular product caused Mr. Bell’s mesothelioma. [Comardelle v. Penn. Gen.
Ins. Co., 76 F. Supp. 3d 628, 635 (E.D. La. 2015)]. Dr. Kraus’s, Dr. Kradin’s,
and Mr. Parker’s opinions on specific causation are unreliable and must be
excluded under Rule 702. However, the plaintiffs’ experts may testify—subject
to a potential Rule 403 objection at trial—regarding Mr. Bell’s mesothelioma
and issues of general causation. [See Vedros v. Northrup Grumman
Shipbuilding, Inc., 119 F. Supp. 3d 556, 565 (E.D. La. 2015)]. Likewise,
provided that any Rule 403 objections are overcome, the experts may also
respond to defendants’ argument that certain exposures were de minimis by
noting that certain studies suggest that specific causation cannot be ruled out.
R. Doc. No. 358, at 7-8.
The latest round of briefing does not convince the Court that its previous order
was in error. Nevertheless, the Court writes again in order to clarify the basis for its
ruling, as well as the parameters within which plaintiffs’ experts must testify at trial.

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2

R. Doc. No. 378.
R. Doc. No. 358.

I.
Reconsideration of interlocutory orders is governed by Rule 54(b) of the Federal
Rules of Civil Procedure. McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701 (5th
Cir. 2014). “Although the precise standard for evaluating a motion to reconsider
under Rule 54(b) is unclear, whether to grant such a motion rests within the
discretion of the court.” Bernard v. Grefer, No. 14–887, 2015 WL 3485761, at *5 (E.D.
La. June 2, 2015) (Fallon, J.). The general practice of courts in this district has been
to evaluate motions to reconsider interlocutory orders under the same standards that
govern Rule 59(e) motions to alter or amend a final judgment.

See Namer v.

Scottsdale Ins. Co., 314 F.R.D. 392, 393 (E.D. La. 2016) (Africk, J.).
A motion to alter or amend a judgment filed pursuant to Rule 59(e) “serve[s]
the narrow purpose of allowing a party to correct manifest errors of law or fact or to
present newly discovered evidence.” Waltman v. Int’l Paper Co., 875 F.2d 468, 473
(5th Cir. 1989). “A manifest error is not demonstrated by the disappointment of the
losing party. It is the wholesale disregard, misapplication, or failure to recognize
controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(citation omitted).
II.
Under general maritime law, in order to recover against any defendant, the
plaintiffs must prove that their injury was “legally caused” by that defendant. Osprey
Underwriting Agency, Ltd. v. Nature’s Way Marine, L.L.C., 642 F. App’x 391, 394 (5th
Cir. 2016).

That is, the plaintiffs must prove that exposure to a defendant’s

asbestos—or to asbestos for which that defendant was otherwise responsible under
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the rubric set forth in R. Doc. No. 352—was a “substantial factor” in causing Bell’s
mesothelioma. See id.
The cumulative damage of asbestos exposure is widely recognized. See Gideon
v. Johns-Manville Sales Corp., 761 F.2d 1129, 1142 (5th Cir. 1985); Comardelle v.
Pennsylvania Gen. Ins. Co., 76 F. Supp. 3d 628, 633 (E.D. La. 2015) (Africk, J.) (“This
is referred to as a dose-response relationship in which the more someone is exposed
to asbestos, the greater their risk for the development of mesothelioma.” (citation
omitted)). However, it does not follow that every breath of asbestos dust a person
takes is a substantial factor in causing the person to develop mesothelioma. Courts
have consistently rejected such “every breath” or “every exposure” theories of
causation. See R. Doc. No. 358, at 5. In the same vein, courts have rejected the “every
exposure above background” theory of causation, which posits that each and every
exposure to asbestos that an individual with mesothelioma experienced in excess of
a background level contributes to the development of the disease. See Vedros v.
Northrop Grumman Shipbuilding, Inc., 119 F. Supp. 3d 556, 563 (E.D. La. 2015)
(Barbier, J.).
So what must an expert in a multi-defendant asbestos lawsuit show in order
to offer the opinion that exposure to a defendant’s asbestos was a substantial factor
in causing the plaintiff’s mesothelioma? That is a difficult question, which explains
why defendants did not try to answer it in their supplemental briefing despite the
Court’s direction that they do so. In the Vedros case cited in this Court’s previous
opinion, Judge Barbier appeared to recognize that an expert could offer the opinion
that certain “special exposures” were substantial contributing factors to the plaintiff’s
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mesothelioma, but he simply found that the expert at issue could not do so because
he had not conducted a sufficient qualitative evaluatation of the plaintiff’s specific
history of exposures in formulating his opinion. See Vedros, 119 F. Supp. 3d at 564
(applying Louisiana law) (citing Robertson v. Doug Ashy Bldg. Materials, Inc., 168
So.3d 556 (La. App. 1 Cir. 2014)).
Similarly, in the Rost case relied on heavily by the plaintiffs in their
supplemental briefing, the Pennsylvania Supreme Court allowed an expert to testify
that the plaintiff’s exposure to the defendant’s products was “a significant
contributing cause” of his development of mesothelioma where the expert opinion was
based on a detailed qualitative and quantitative assessment of the nature of the
plaintiff’s exposure. See Rost v. Ford Motor Co., 2016 WL 6876490, at *8 (Pa. Nov.
22, 2016) (permitting expert opinion that “Rost’s exposures to asbestos at Smith
Motors were sufficiently frequent, regular, and proximate to permit the inference that
these exposures were substantially causative”). 3
In line with Vedros and Rost, this Court does not rule out the possibility that
an expert can offer a specific causation opinion in a multi-defendant mesothelioma
case. Rather, the Court is simply of the view that plaintiffs’ experts’ opinions in this
case are not reliable enough to be admitted. The fundamental flaw in the proposed
expert opinions is the same flaw that courts have recognized in the “every exposure”
and “every exposure above background” theories of causation: they are specific

It is true, as defendants point out, that the Rost decision applied Pennsylvania law
and not general maritime law. See 2016 WL 6876490, at *8. However, there are no
differences between the two laws material to the point the Court is making above.
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causation opinions untethered to the decedent himself, based only on generalized
studies of the effects that certain exposure levels can have on the population. As this
Court explained in its first order, “increasing the likelihood of disease is a different
matter than actually causing such disease,” and evidence that mesothelioma is more
prominent in certain populations does not of itself provide a basis for opining as to
legal causation. See R. Doc. No. 358, at 7.
As an example, Dr. Kradin relies inter alia on a study which showed that
exposure levels of 0.002 f/cc were associated with 46 cases of mesothelioma per
1,000,000 people, R. Doc. No. 211-4, at 14, to establish that even low level asbestos
exposure can cause mesothelioma, R. Doc. No. 211-4, at 17. But without more of an
explanation supported by a reasonable methodology, such studies are insufficient to
render a specific causation opinion because they represent little more than a guess
as to which group Mr. Bell fits.

The fact that Mr. Bell actually developed

mesothelioma is not sufficient to plug the analytical gap because he was exposed to
multiple forms of asbestos manufactured by multiple defendants on multiple
occasions. As such, while the evidence may support the expert opinion that low levels
of exposure to a defendant’s product could have caused Mr. Bell’s mesothelioma, it
does not support the conclusion that they did.

Of course, if the numbers were

different—say 900,000 cases of mesothelioma out of 1,000,000 people—the result
could be different as well. The Court expresses no opinion as to the appropriate
tipping point.
As plaintiffs repeat throughout their motion, their experts believe based on a
review of the evidence and the literature that Bell’s exposures exceeded the levels
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which have been proven to cause mesothelioma. That is an acceptable opinion. What
is not acceptable is the next step: the opinion that, because these levels of exposure
could cause mesothelioma, they more likely than not did so in this instance.
III.
In sum, Dr. Kraus’s, Dr. Kradin’s, and Mr. Parker’s opinions on specific
causation are unreliable and must be excluded under Rule 702.

However, the

plaintiffs’ experts may testify—subject to a potential Rule 403 objection at trial—
regarding Mr. Bell’s mesothelioma and issues of general causation.

Likewise,

provided that any Rule 403 objections are overcome, the experts may also respond to
defendants’ argument that certain exposures were de minimis by noting that certain
studies suggest that specific causation cannot be ruled out.
Plaintiffs ask for clarification on this latter point. They ask: “Under this
Court’s current judgment, are plaintiffs’ experts allowed to opine that certain
scientific studies suggest that Bell’s exposures to defendants’ products were
significant?” R. Doc. No. 378-1, at 19. They also ask: “Are plaintiffs’ experts . . .
allowed to offer . . . testimony that the levels to which Bell was exposed to defendants’
products are recognized as significant exposures according to the scientific
literature?” R. Doc. No. 378-1, at 20.
The answer to both questions is “yes,” provided that it is made clear that the
term “significant” means only “statistically significant” in the sense that exposure at
a certain level for a certain duration can cause x in y number of people to develop
mesothelioma. But plaintiffs’ counsel should tread carefully in this area, as the Court
will not permit a backdoor opinion as to specific causation in the guise of an opinion
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about what the studies suggest. To the extent counsel believes a question flirts with
this line, they should approach the bench for guidance.
IT IS ORDERED that the motion for reconsideration is DENIED as set forth
herein.

New Orleans, Louisiana, March 6, 2017.

_________________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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