Relyea v. Borg Warner Corporation et al

Filing 73

OPINION & ORDER #105870....Defendant now moves in limine to preclude testimony from plaintiffs expert Dr. Jill Ohar (Ohar) with respect to two related issues. They seek to preclude under Federal Rule of Evidence 702 and Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 573 (1993).....To the extent it derives from the facts and methodology described above, therefore, Ohars testimony is not barred by Rule 702. To the extent Ohar attempts to testify in a manner different from the above and in reliance on the theory that every exposure counts, defendants may renew their challenge to such testimony as that time. (Signed by Judge Denise L. Cote on 9/22/2015) (gr) Modified on 9/24/2015 (ca).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DESTE C. RELYEA, as Executor of the
:
Estate of JO ANN RELYEA,
:
:
Plaintiff,
:
:
-v:
:
BORG WARNER CORP., et al.,
:
:
Defendants.
:
:
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APPEARANCES

12cv3564 (DLC)
OPINION & ORDER

For plaintiff Deste C. Relyea, as Executor to the Estate of
Jo Ann Relyea:
Amber R. Long
Keith W. Binder
LEVY KONIGSBERG, LLP
800 Third Ave., 11th Fl.
New York, NY 10022
For defendant Honeywell International Inc.:
Andrew Sacher
McDERMOTT WILL & EMERY LLP
340 Madison Ave.
New York, NY 10173
DENISE COTE, District Judge:
This case is a wrongful death action against the successor
in interest to a manufacturer of brake pads that contained
asbestos.

Plaintiff contends that prolonged exposure to brake

dust from these pads caused Jo Ann Reylea (“Reylea”), who was
employed as a part-time bookkeeper at a gas station and auto
repair shop from 1984 to 1990, to develop mesothelioma.
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Defendant now moves in limine to preclude testimony from
plaintiff’s expert Dr. Jill Ohar (“Ohar”) with respect to two
related issues. 1

They seek to preclude under Federal Rule of

Evidence 702 and Daubert v. Merrill Dow Pharms., Inc., 509 U.S.
573 (1993), any testimony that brake dust causes mesothelioma
and any expert opinion based on the theory that “every exposure
counts.”

In addition, defendants seek to preclude any testimony

that asbestos or chrysotile cause mesothelioma absent a showing
that such evidence applies to brake dust specifically.

To the

extent these motions seek to preclude Ohar’s testimony as it is
reflected in her expert reports, they are denied.
Ohar states in her expert report that,
[a]fter reviewing the medical record and the
depositions of Ms. Relyea . . . I believe within a
reasonable degree of medical certainty that Ms. Relyea
had a history of asbestos exposure and suffers with a
malignant mesothelioma that resulted from her asbestos
exposure. The literature is replete with
documentation that brake dust exposure provides
asbestos exposure leading to the development of
mesothelioma (1-5). Asbestos is a carcinogen and
there is a direct causal relationship between exposure
to asbestos and the development of mesothelioma (6-9).
Asbestos has been shown to be causally related to at
least 80% of mesotheliomas (10;11).

Defendants also make this motion with respect to another of
plaintiff’s experts, James A. Strauchen. Plaintiff, however, is
not seeking to admit any testimony by Dr. Strauchen that would
be affected by this motion.
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2

Ohar’s report cites five peer-reviewed scientific articles that
specifically discuss the linkage between brake dust and asbestos
exposure.
In an affidavit dated July 9, 2015, Ohar elaborates upon
her expert opinion.

Most relevantly, she describes the types of

evidence she considered in forming her opinion.

She states that

she considered Relyea’s “detailed occupational history and
exposure testimony documenting Ms. Relyea’s exposure to asbestos
from Bendix brakes over a period of approximately 5 years”; a
“large body of medical and scientific research” regarding
asbestos-related diseases, “including literature specific to
brakes”; “published literature demonstrating significant levels
of asbestos in the air during brake work”; and the opinion of
another of plaintiff’s experts, Steven Paskal (“Paskal”), that
“Relyea likely incurred exposures that ranged from hundreds to
thousands of times greater than (and in addition to) ambient
pollution levels.”
testimony.

Defendants have not challenged Paskal’s

On the basis of this information, Ohar opines that

“exposure to asbestos from Bendix brakes was a substantial
factor in causing Ms. Relyea's mesothelioma.”
Federal Rule of Evidence 702 permits expert testimony so
long as (1) “the testimony is based on sufficient facts or
data,” (2) “the testimony is the product of reliable principles
and methods,” and (3) “the expert has reliably applied the
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principles and methods to the facts of the case.”
702; Daubert, 509 U.S. at 592.

Fed. R. Evid.

“[T]he proponent of expert

testimony has the burden of establishing by a preponderance of
the evidence that the admissibility requirements of Rule 702 are
satisfied.”

United States v. Williams, 506 F.3d 151, 160 (2d

Cir. 2007).

The district court performs the role of gatekeeper

-- ensuring that the proponent has made the necessary showing
and that the expert's testimony “both rests on a reliable
foundation and is relevant to the task at hand.”
U.S. at 597.

Daubert, 509

Rule 702 and Daubert do not require exclusion

here.
First, defendants’ motion in limine to preclude causation
testimony in the absence of a proper foundation is denied
because an adequate foundation exists.

Ohar’s expert report and

affidavit rely on peer-reviewed scientific literature linking
the alleged cancer-causing properties of asbestos or chrysotile
to the alleged cancer-causing properties of brake dust.
Second, it is unnecessary to rule on defendant’s motion in
limine to exclude Ohar’s testimony to the extent it purports to
rely upon an “every exposure counts” theory of causation because
the defendant has not shown that Ohar intends to rely upon that
theory. 2

Instead, Ohar relies upon a methodology “consistent

Defendant argues that Ohar is advancing an argument of
“cumulative exposure” that is substantively the same as “every
2

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with the Helsinki [C]riteria for diagnosis and attribution of
asbestos related cancers.”

The Helsinki Criteria, drawn from a

peer-reviewed scientific article published in 1997, set forth a
number of factors to consider when determining whether exposure
to asbestos has caused mesothelioma in a particular case,
including occupational history and time elapsed between exposure
and diagnosis.

In addition, to apply the Helsinki Criteria to

the facts of this case, Ohar states that she relies upon
specific estimates of the magnitude of Relyea’s brake dust
exposure provided by Paskal as well as scientific literature
specifically linking brake dust to asbestos.
The Helsinki Criteria, scientific literature, and Ohar’s
professional experience together furnish a sufficiently reliable
methodology to satisfy the Daubert threshold for admissibility.
Ohar has also shown that there are sufficient facts upon which
to base her opinion.

Defendants may, of course, challenge on

cross-examination the manner in which Ohar applies that
methodology, including the evidence and studies upon which she
relies in concluding that brake dust caused Relyea’s
exposure counts.” At deposition, Ohar stated that “any exposure
above background . . . increases [a] person’s risk of developing
mesothelioma.” This is not, however, a “rewording” of the
“every exposure counts” theory, which maintains that any
exposure “above background causes mesothelioma, no matter the
type or the dose.” (Emphasis added.) In addition, Ohar’s
expert report and affidavit make clear that her methodology does
not depend upon the “every exposure counts” theory.
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mesothelioma.

These challenges, however, go to the weight of

Ohar’s testimony, not its admissibility.
To the extent it derives from the facts and methodology
described above, therefore, Ohar’s testimony is not barred by
Rule 702.

To the extent Ohar attempts to testify in a manner

different from the above and in reliance on the theory that
“every exposure counts,” defendants may renew their challenge to
such testimony as that time.
Dated:

New York, New York
September 22, 2015
__________________________________
DENISE COTE
United States District Judge

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