Bell v. Foster Wheeler Energy Corporation, et al

Filing 433

ORDER AND REASONS re 220 Motion to Exclude Testimony of Dr. Michael Graham and 225 Motion to Exclude Testimony of Dr. Mark Taragin. IT IS ORDERED that the motions are GRANTED IN PART and DENIED IN PART as set forth herein. 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 are two Daubert motions filed by the plaintiffs: one motion1
to exclude expert testimony by Dr. Michael Graham, and one motion 2 to exclude
expert testimony by Dr. Mark Taragin. The Court grants the motions in part and
denies the motions in part for essentially the same reasons set forth in the Court’s
previous order 3 limiting the expert opinions of plaintiffs’ experts. For the following
reasons, specific causation opinions by Dr. Graham and Dr. Taragin will not be
permitted.
I.
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;
R. Doc. No. 220.
R. Doc. No. 225.
3 R. Doc. No. 358.
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(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)
(quotations omitted). Additionally, Rule 702 states that an expert may be qualified
based on “knowledge, skill, experience, training, or education.” Hicks, 389 F.3d at
524. “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) (quotations omitted). 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.
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).
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

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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). “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).

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II.
The Court first addresses the proposed testimony of Dr. Graham, a forensic
pathologist.

Dr. Graham has been hired to provide causation testimony for six

different defendants in this case. 4 The expert reports Dr. Graham provided for each
defendant are identical in every respect except one. The final line of each report
provides: “It is my opinion to a reasonable degree of medical certainty that Mr. Bell’s
pleural malignant mesothelioma was not caused or contributed to by any chrysotile
dust derived from [insert particular defendant’s products] to which he may have been
exposed.” Compare R. Doc. Nos. 220-4, 220-5, 220-6, 220-7, 220-8, 220-9. The reports
also offer general causation testimony regarding the effects of exposure to chrysotile
dust. In short, Dr. Graham opines that “prolonged heavy exposures” to chrysotile
dust are required before the risk of developing malignant mesothelioma is increased.
See, e.g., R. Doc. No. 220-4, at 2.
The plaintiffs ask the Court to exclude Dr. Graham’s causation testimony on
three separate grounds. The Court addresses each in turn.
A.
The plaintiffs first assert that Dr. Graham’s report violates Rule 26(a)(2)(B) of
the Federal Rules of Civil Procedure, which requires an expert witness to include in
his report “a complete statement of all opinions the witness will express and the basis
and reasons for them.” They argue that Dr. Graham’s report is deficient because he

Dr. Graham was hired by defendants IMO Industries, Inc., Warren Pumps, Inc., Air
& Liquid Systems Corp. (successor to Buffalo Pumps, Inc.), Crane Co., York
International, Inc., and Aurora Pump Co.
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does not cite to sufficient authority or evidence to support his specific causation
opinions regarding each defendant’s products. That argument is essentially the
plaintiffs’ substantive objection to Dr. Graham’s testimony repackaged as a
procedural attack.
The basic purpose of Rule 26 is to prevent prejudice and surprise. Joe Hand
Promotions, Inc. v. Chios, Inc., 544 F. App’x 444, 446 (5th Cir. 2013). Dr. Graham’s
expert report contains sufficient facts and reasoning regarding the basis for his
opinions. The fact that the plaintiffs do not believe that the basis is adequate to
support Dr. Graham’s expert opinions is really a Daubert challenge to the reliability
of the opinions, not a Rule 26 challenge. Dr. Graham’s report was sufficiently detailed
to allow the plaintiffs to prepare their own experts, prepare for his deposition, and
plan for cross examination. Even if Dr. Graham’s report did not satisfy all of the
technical requirements of Rule 26, his failure to do so was harmless and not a basis
for excluding Dr. Graham’s opinions. See Fed. R. Civ. P. 37(c).
B.
The plaintiffs next challenge Dr. Graham’s general causation opinions
regarding chrysotile dust exposure as unreliable under the Daubert framework. They
argue that his opinions are contradicted by the medical and scientific literature.
Having reviewed the proposed testimony and the briefs, however, the Court concludes
that these are issues that the plaintiffs can address through vigorous crossexamination or counter with their own expert witnesses. See, e.g., United States v.
14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996) (“As a general rule, questions
relating to the bases and sources of an expert’s opinion affect the weight to be
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assigned that opinion rather than its admissibility and should be left for the jury’s
consideration.”).

The Court will allow Dr. Graham to offer general causation

testimony regarding the nature of chrysotile dust and the effects of exposure to it.
C.
The plaintiffs argue that even if the Court will not exclude Dr. Graham’s
general causation opinions, it should at the very least exclude his opinions that Mr.
Bell’s pleural malignant mesothelioma “was not caused or contributed to by any
chrysotile dust derived from” any of the six defendants’ products. The Court agrees
that these specific causation opinions are unreliable and must be excluded.
The problem with Dr. Graham’s proposed testimony is the same problem the
Court addressed with respect to the proposed testimony of plaintiffs’ experts—Dr.
Kraus, Dr. Kradin, and Mr. Parker. If anything, Dr. Graham’s proposed testimony is
even more flawed. This Court recently explained in Comardelle v. Pennsylvania Gen.
Ins. Co., 76 F. Supp. 3d 628, 634 (E.D. La. 2015) (Africk, J.), that a “one-size-fits-all
approach” to specific causation testimony is impermissible. It is difficult to imagine
a clearer example of such an approach than Dr. Graham’s opinion, which draws no
distinctions whatsoever between Mr. Bell’s exposures to each of the defendant’s
products.
With no qualitative analysis accounting for “any differences or nuances of
duration, concentration, exposure, and the properties of the fibers” to which Mr. Bell
may have been exposed, Dr. Graham’s report proceeds directly from general
causation testimony to the specific opinion that Mr. Bell’s mesothelioma cannot be
attributed to any of these six defendants. See Comardelle, 76 F. Supp. 3d at 634. Dr.
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Graham does not account for the types of products manufactured by the defendants
(i.e. valves, pumps, and refrigeration equipment) or the different manners in which
Mr. Bell may have come into contact with those products. It appears that Dr. Graham
may not even have considered Mr. Bell’s deposition testimony when forming his
opinion, as he has not listed Mr. Bell’s deposition testimony in his report as something
he reviewed. The only conclusion that may be implied from such a lack of information
is that such qualitative distinctions were of no significance to Dr. Graham.
This is the third opinion this Court has rendered on this issue in this case.
There is no need to continue to beat a dead horse. Suffice it to say, in the realm of
asbestos exposure, the percentages alone simply do not bear out specific causation
testimony one way or the other. See Yates v. Ford Motor Co., 113 F. Supp. 3d 841,
847 (E.D. N.C. 2015) (“[I]ncreasing the likelihood of disease is a different matter than
actually causing such disease.”). The analytical gap is too great. Accordingly, Dr.
Graham may not offer the specific causation opinion that a defendant’s products did
not cause or contribute to causing Mr. Bell’s mesothelioma. Plaintiffs’ motion is
granted as to this issue.
II.
The Court now turns to Dr. Mark Taragin, an epidemiologist retained by
defendant Aurora Pump Company. The plaintiffs argue that Dr. Taragin’s causation
opinions should be excluded because he did not include all of the bases for his opinions
in his expert report and because his opinions are unreliable. The Court addresses
each argument in turn.

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A.
As previously explained, Rule 26(a)(2)(B) requires an expert witness to submit
a report containing (among other things) “a complete statement of all opinions the
witness will express and the basis and reasons for them.” Dr. Taragin admitted
during his deposition that he did not read or rely on the expert reports of John
Spencer or Thomas McCaffrey—two of Aurora Pumps’ other experts—when
formulating the opinions in his report. See R. Doc. No. 225-6, at 4. However, after
Dr. Taragin submitted his report but before he was deposed, Dr. Taragin received
copies of Spencer and McCaffrey’s reports (and possibly a transcript from the
deposition of one of them).

See id.

Dr. Taragin then identified Spencer and

McCaffrey’s reports during his deposition as material on which he relied when
formulating his expert opinions. See id. at 3. The plaintiffs now move to exclude any
opinion by Dr. Taragin which was formed in reliance on Spencer or McCaffrey’s
reports because neither Spencer nor McCaffrey’s report was identified as a basis for
Dr. Taragin’s opinions in his expert report. But excluding Dr. Taragin’s opinions on
that basis is unnecessary.
Pursuant to Rule 26(e)(1)(A), Aurora Pumps was required to supplement Dr.
Taragin’s report to include the missing information unless “the additional or
corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.”

The plaintiffs learned during Dr.

Taragin’s deposition that he was relying on Spencer and McCaffrey’s reports. As
such, it is questionable whether a supplemental report was required under Rule 26(e).
But even if Aurora Pumps should have submitted a supplemental report, the
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plaintiffs have sustained no prejudice to speak of. Plaintiffs have deposed Spencer,
McCaffrey, and Dr. Taragin. There has been no unfair surprise or trial by ambush.
Absent such prejudice, the Court will not exclude Dr. Taragin’s opinion. See Fed. R.
Civ. P. 37(c).
B.
The plaintiffs also argue that Dr. Taragin’s opinions regarding medical
causation should be excluded because Dr. Taragin is not qualified. If the Court will
not exclude all of Dr. Taragin’s causation testimony on that ground, the plaintiffs
assert that at the very least his specific causation testimony should be excluded as
unreliable.
“Rule 702 does not mandate that an expert be highly qualified in order to
testify about a given issue.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009).
“Differences in expertise bear chiefly on the weight to be assigned to the testimony
by the trier of fact, not its admissibility.”

Id. (citing Daubert, 509 U.S. at 596

(“Vigorous 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.”). Under that standard, the Court sees no
reason why, as a general matter, an expert in epidemiology should not be considered
qualified to offer a causation opinion in a toxic tort case. Epidemiology, after all,
“attempts to define a relationship between a disease and a factor suspected of causing
it.” Brock v. Merrell Dow Pharm., Inc., 874 F.2d 307, 311 (5th Cir.), modified on reh’g,
884 F.2d 166 (5th Cir. 1989). Dr. Taragin is qualified to testify regarding general

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causation and the jury can consider his credentials and give his testimony the weight
it deserves.
Again, however, for the reasons set forth above, Dr. Taragin may not offer the
specific causation opinion that “Aurora Pumps was not a substantial contributing
factor for Mr. Bell’s mesothelioma.” See R. Doc. No. 225-4. The Court will not allow
Aurora Pumps’ expert to entirely rely on evidence of general causation to offer the
“specific causation opinion in this case” that a particular product did not cause Mr.
Bell’s mesothelioma. Comardelle, 76 F. Supp. 3d at 635.
III.
For the foregoing reasons,
IT IS ORDERED that the motions are GRANTED IN PART and DENIED
IN PART as set forth herein.

New Orleans, Louisiana, March 6, 2017.

_________________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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