HOFFEDITZ et al v. AM GENERAL, LLC et al
OPINION. Signed by Judge Claire C. Cecchi on 08/04/2017. (ek)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JUDITH L. HOFFEDITZ, Individually
And As Executrix Ad Prosequendum For
The Estate of GERALD L. HOFFEDITZ,
Civil Action No. 09-0257
AM GENERAL, LLC, individually and
as successor-in-interest to AM General
Corporation, et al.,
CECCHI, District Judge.
This matter comes before the Court upon the joint motion of Defendants ArvinMeritor,
Inc., Rockwell International Corporation,’ AM General, LLC, Cummins, Inc., Ford Motor
Company, and Honeywell, Inc. to exclude the evidence and testimony put forth by Plaintiff Judith
Hoffeditz’s2 expert, Dr. Jacqueline Moline. ECF No. 113. The Court held a Daubert hearing,
after which, Defendants filed their joint motion.3 The Parties have also submitted numerous letters
to the Court. Over the course of several rounds of briefing before multiple judges, it appears that
ArvinMeritor is successor-in-interest to the former automotive segment of Rockwell.
Although this action was filed jointly by Gerald and Judith Hoffeditz, Gerald Hoffeditz passed
away during the pendency of this action, at which point Judith Hoffeditz was substituted as
Plaintiff, individually and as executrix of Mr. Hoffeditz’s estate.
This Opinion deals only with the motion to exclude the report and testimony of Dr. Moline, not
with the previously filed summary judgment motion.
the positions of the Parties have evolved as the case has progressed and the surrounding case law
Accordingly, in considering this motion, the Court will consider the Parties’
arguments in light of the representations that they made to the Court during the February 10, 2017
conference and their subsequent letters. In particular, given Defendants’ representations that only
specific causation is in dispute, the Court will limit its opinion to that issue. See, e.g., ECF Nos.
147, 149, 150.
Beginning in 1968, Mr. Hoffeditz worked as a mechanic and heavy equipment repairer at
the Letterkenny Army Depot, where he repaired transmissions, brake parts, and gaskets on large
military trucks that allegedly contained asbestos. These trucks were assembled by AM General
by purportedly using axles, transfer cases, and emergency parking brakes from Rockwell and
engines allegedly supplied by Cummins. Mr. Hoffeditz may have been exposed to asbestos as
early as 1962, however, while performing maintenance on his personal automobiles, including
several vehicles manufactured by Ford. Mr. Hoffeditz was diagnosed with mesothelioma on April
2$, 200$ and subsequently passed away.
“Under the Federal Rules of Evidence, a trial judge acts as a ‘gatekeeper’ to ensure that
any and all expert testimony or evidence is not only relevant, but also reliable.” Fineda v. Ford
Motor Co., 520 f.3d 237, 243 (3d Cir. 2008) (quoting Kannankeril v. Terminix Int’l, Inc., 12$ F.3d
802, $06 (3d Cir. 1997)). The admissibility of such expert testimony is governed by Daubert v.
Although ArvinMeritor’s March 3, 2017 letter states the Court must determine whether Dr.
Moline may testify as to “general causation,” ECF No. 146 at 3, the substance of the letter
addresses questions of specific causation.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and Federal Rule of Evidence 702. For expert
testimony to be admitted: “(1) the proffered witness must be an expert, i.e., must be qualified; (2)
the expert must testify about matters requiring scientific, technical or specialized knowledge, i.e.,
reliability; and (3) the expert’s testimony must assist the trier of fact, i.e., fit.” United States v.
SchfJ 602 F.3d 152, 172 (3d Cir. 2010) (internal citation, quotation marks, and brackets omitted).
To be qualified, the witness must possess specialized expertise.
A broad range of
knowledge, skills, and training qualify as specialized expertise. Schneider ex rel. Schneider v.
Fried, 320 F.3d 396, 404 (3d Cir. 2003); see also Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777,
782—83 (3d Cir. 1995) (finding, in a mesothelioma case, that “it is an abuse of discretion to exclude
testimony simply because the trial court does not deem the proposed expert to be the best qualified
or because the proposed expert does not have the specialization that the court considers most
In evaluating the reliability of a proffered expert’s testimony, the Third Circuit has
emphasized that “an expert’s testimony is admissible so long as the process or technique the expert
used in formulating the opinion is reliable.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742
(3d Cir. 1994) (internal citation omitted). An expert must base his opinion “on the ‘methods and
procedures of science’ rather than on ‘subjective belief or unsupported speculation.” Id. (quoting
Daubert, 509 U.S. at 590). “The test of admissibility is not whether a particular scientific opinion
has the best foundation, or even whether the opinion is supported by the best methodology or
unassailable research.” In re TMILitig., 193 F.3d 613, 665 (3d Cir. 1999), amended, 199 F.3d 158
(3d Cir. 2000). “Recognizing that the ‘inquiry as to whether a particular scientific technique or
method is reliable is a flexible one,’ the [Third Circuit] has identified a nonexhaustive list of eight
factors that courts may address in determining whether an expert’s methodology is reliable.”
Steele v. Aramark Corp., No. CIV. 09-4340 JB$/JS, 2012 WL 1067879, at *15 (D.N.J. Mar. 29,
2012) (quoting Faoli, 35 F.3d at 742).
With respect to fit, the expert’s testimony must be relevant for the purposes of the case and
must assist the trier of fact by establishing a valid scientific connection to the pertinent inquiry.
Schneider, 320 F.3d at 404; Magistrini v. One Hour Martinizing Thy Cleaning, 180 F. Supp. 2d
584, 595 (D.N.J. 2002). Although the admissibility of expert testimony is a procedural question
governed by Rule 702 and federal law, this Court may also consider state substantive law
governing Plaintiff’s burden of proof in establishing causation. See Faoli, 35 f.3d at 750—52, n.3 1
(explaining that, in making admissibility determinations, a federal court may consider state
substantive law relating to a plaintiffs burden of proof). The Parties agree that Pennsylvania law
rather than New Jersey law applies to this case. See, e.g., ECF Nos. 113-5, 146, 147, 149, 150.
The Pennsylvania Supreme Court recently clarified the relevant substantive law in Rost v. Ford
Motor Co., 151 A.3d 1032 (Pa. 2016).
It explained that in the context of asbestos liability
litigation, “to create a jury question [as to proximate (or substantial factor) causation], a plaintiff
must adduce evidence that exposure to defendant’s asbestos-containing product was sufficiently
‘frequent, regular, and proximate’ to support a jury’s finding that defendant’s product was
Those factors are: (1) whether the methodology can and has been tested; (2) whether the
technique has been subjected to peer review and publication; (3) the known or potential rate of
error of the methodology; (4) whether the technique has been generally accepted in the proper
scientific community; (5) the existence and maintenance of standards controlling the technique’s
operation; (6) the relationship of the technique to methods that have been established to be reliable;
(7) the degree to which the expert is qualified; and (8) the non-judicial uses to which the technique
has been put. Paoli, 35 f.3d at 742. However, as the Supreme Court noted in Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141—42 (1999), “the test of reliability is ‘flexible,’ and Daubert’s list
of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather,
the law grants a district court the same broad latitude when it decides how to determine reliability
as it enjoys in respect to its ultimate reliability determination.”
substantially causative of the disease.” Id. at 1044. The court also explained that while “expert
testimony based upon the notion that ‘each and every breath’ of asbestos is substantially causative
of mesothelioma will not suffice to create a jury question on the issue of substantial factor
causation,” Id., the law does not preclude experts from testifying “that every exposure [to asbestos]
cumulatively contributes to the total dose,” Id. at 1045.
To the extent Defendants contend Dr. Moline is not qualified to testify as an expert in this
case,6 the Court rejects that argument. Given Dr. Moline’s extensive qualifications in the fields of
Occupational and Environmental Medicine (including a medical degree from the University of
Chicago, a residency at Yale University, a residency in Occupational and Environmental Medicine
at Mount Sinai School of Medicine, and a professorship at the Hofstra University School of
Medicine), her study of asbestos (including research at Mount Sinai Medical Center with Dr. Irving
Selikoff, one of the leading experts in the field of Occupational Medicine), and her work with
“hundreds” of mesothelioma patients, the Court finds Dr. Moline is qualified to testify as an expert
in this case.
Reliability and Fit
Having reviewed Dr. Moline’s affidavit and observed her testimony at the Daubert hearing,
the Court concludes that the methodology Dr. Moline applied was reliable and would assist the
trier of fact. In reaching her conclusion on issues of causation, Dr. Moline considered a variety of
While Defendants have previously suggested Dr. Moline is not qualified, see ECF No. 47 at 6,
ECF No. 55 at 4, they do not appear to advance this argument in the instant motion. Nevertheless,
the Court addresses this issue for the sake of completeness.
methodologies established in the literature for determining whether exposure to a chemical
compound has caused a particular disease. Dr. Moline explained that four questions should be
asked in order to establish causation: (1) does the substance cause the disease? (2) was the patient
exposed to a dose of the substance that has been shown to cause the disease? (3) is there an
appropriate latency between the exposure and the disease? and (4) does the patient have the
disease? Dr. Moline then assessed each of these questions, considering a variety of publications,
including peer-reviewed articles, and factual evidence relating to Mr. Hoffeditz’ s exposures to
Defendants products and his medical history. Dr. Moline also considered alternative known causes
of mesothelioma and excluded them based on Mr. Hoffeditz’s medical and occupational history.
The primary dispute between the Parties involves Dr. Moline’s answer to the second
question, in which she concluded that through his exposure to Defendants’ products, Mr. Hoffeditz
was exposed to a dose of asbestos that has been shown to cause mesothelioma. Specifically,
Defendants assert that in reaching this conclusion, Dr. Moline relies on an impermissible “each
and every breath” theory of causation, which has been held insufficient to establish substantial
factor causation under Pennsylvania law. Because, as explained below, Dr. Moline did not rely
on an “each and every breath” theory of causation, but instead considered Mr. Hoffeditz’s specific
exposure to Defendants’ products and the work he did with those products, the Court concludes
that Dr. Moline’s testimony is sufficiently reliable.
As Defendants acknowledge, Dr. Moline has not expressly stated that “each and every
breath” of asbestos is substantially causative. Instead, Defendants point to statements by Dr.
Moline that, inter alia, “there is no safe level of asbestos,” ECF No. 113-11 at
Aff.”), and that “[t]he inhalation of all asbestos fibers
asbestos-related disease,” Moline Aff.
increases the risk of developing an
and argue that “[tJhe ‘cumulative exposure’ theory
[relied upon by Dr. Moline] is just another semantic way of describing the same inadmissible
‘every exposure’ theory.” ECF No. 113-1 at 4 n.3. Therefore, Defendants argue that under
Pennsylvania state law, Dr. Moline’s testimony cannot establish causation, and under Daubert
should not be admitted. Defendant Ford made a nearly identical argument regarding Pennsylvania
law in Rost. The Pennsylvania Supreme Court rejected Ford’s argument and made clear that while
reliance on an argument that asserts that “each and every breath’ of asbestos is substantially
causative” is impermissible, that does not bar an expert from testifying to the underlying fact “that
every exposure [to asbestos] cumulatively contributes to the total dose,” id. at 1O45.
Rather than relying on the theory that “each and every breath” of asbestos was a proximate
cause of Mr. Hoffeditz’s mesothelioma, Dr. Moline considered Mr. Hoffeditz’s actual exposure to
Defendants’ products and his occupational history generally, Moline Aff.
and his lack
of exposure to other causes of mesothelioma. She then concluded that these exposures were
significant. In doing so, she looked at Mr. Hoffeditz’s answers to interrogatories, his deposition
transcript, and his medical records, to determine his exposure. 12/11/13 Tr. 82:1-14. To determine
Mr. Hoffeditz’s exposures from different Defendants’ products were “significant,” Dr. Moline
considered the amount and type of work performed with different products and compared them to
studies considering individuals working in similar capacities or analysis of similar products.8 See,
e.g., 12/11/13 Tr. 91:1-94:8 (discussing other studies and case reports finding that the type of
Instead, as Defendants have repeatedly acknowledged “mesothelioma is a dose-response
disease,” ECF No. 115 at 5; see, e.g., ECF No. 113-3 at 17, so increases in exposure increase the
likelihood of getting the disease.
The Court notes that Judge Robreno, who handled this case as part of the multi-district litigation,
has already found that there was sufficient factual evidence in the record as to Ford and Cummins
to support a conclusion that Mr. Hoffeditz’ s exposure to their products had sufficient “frequency,
regularity and proximity.” ECF No. 1 13-5; ECF No. 114 Ex. E.
asbestos in Defendants’ products could give rise to mesothelioma); 12/11/13 Tr. 12 104:2-110:15
(discussing case studies, articles, and government reports concluding that exposure to asbestos
containing brakes can give rise to disease, including after the brakes have been used and comparing
that literature to the types of work Mr. Hoffeditz did); 12/11/13 Tr. 120:21-122:1 (discussing her
review of Mr. Hoffeditz’s occupation history and her determination that he would not have had
asbestos exposures from other activities); 12/11/13 Tr. 124:24-125:22 (comparing the time
between Mr. Hoffeditz’ s exposure to Defendant’s products and his development of mesothelioma
to typical latency periods); 12/13/13 Tr. 64:19-65:8 (considering the number of Ford vehicles Mr.
Hoffeditz had worked on); 12/13/13 Tr. 102:11-108:5 (discussing the types of activities Mr.
Hoffedtiz testified were performed on gaskets and comparing to other studies on different types of
asbestos containing gaskets); 12/13/13 Tr. 112:1-113:6 (discussing the types of activities Mr.
Hoffeditz testified that he performed on brakes). This is precisely the type of analysis that at least
one defendant has suggested should be performed. See ECF No. 146 at 3 (explaining that a “more
conventional route of using the scientific method to establish specific causation” is “by presenting a
reasonably complete occupational history and providing some reasonable address of potential sources
of exposure other than a particular defendant’s product” (quoting Betz v. Pneumo Abex, LLC, 44 A.3d
27, 54 (Pa. 2012)).
While Defendants have pointed to specific cases in which they believe Dr. Moline has
improperly relied on studies and reports that are improper or contradicted by other studies, Dr.
Moline offered competent criticisms of the studies Defendants cite in opposition to her opinion.
Thus, the Court finds these contradictions are best addressed through cross-examination. 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.”). Similarly, to the extent Defendants argue Dr. Moline should not have
relied studies and reports considering related products to reach conclusions about Defendants’
products, (e.g., considering studies on steam gaskets in assessing Mr. Hoffeditz’s exposures to
engine gaskets), this is best addressed through cross-examination and the presentation of contrary
Finally, to the extent Defendants argue Dr. Moline’ s testimony should not be admitted
because she did not quantify Mr. Hoffeditz’ s exposure from each Defendant’s products, they have
failed to articulate how this indicates a lack of reliability or fit. As other courts have noted, in
personal injury cases, “[a] quantitative dose calculation
may in fact be far more speculative
than a qualitative analysis,” because as a practical matter, the specific data needed to establish
precise quantitative values for exposure are not tracked or maintained in many cases. Mcliunn v.
Babcock & Wilcox Power Generation Grp., Inc., No. 2:10CV143, 2014 WL 814878, at *14 (W.D.
Pa. Feb. 27, 2014); accord Bonner v. ISP Techs., Inc., 259 F.3d 924, 931(8th Cir. 2001) (“[I]t was
not necessary that Bonner’s experts quantify the amount of FoamFlush to which she was exposed
in order to demonstrate that she was exposed to a toxic level of BLO.” (citation omitted)). Here,
as set forth above, Dr. Moline has assessed Mr. Hoffeditz’s exposure from Defendants’ products
based on his reports of the types of activities that he engaged in. The Court concludes that Dr.
Moline’s testimony may be considered.
Having determined that Dr. Moline is qualified to testify as to the relevant matters and that
her testimony is sufficiently reliably and will assist the trier of fact, the Court concludes that
Defendants’ Motion is DENIED. An appropriate ORDER will accompany this opinion.
CLAIRE C. CECCHI, U.S.D.J.
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