Gore V. 3M Company, et al.

Filing 316

ORDER denying 205 Motion in Limine; denying 206 Motion for Summary Judgment; denying 211 Motion in Limine; denying 216 Motion in Limine; granting in part and denying in part 229 Motion for Summary Judgment; denying 236 Motion for Summary Judgment; denying 248 Motion in Limine. The Clerk is directed to schedule a final pretrial conference no earlier than 45 days from the filing of this order. Signed by Senior Judge W. Earl Britt on 9/21/2018. (Herrmann, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-716-BR
FAYE GORE, Individually and Executrix
of the Estate of Wade Miller Gore,
Deceased,

)
)
)
)
Plaintiff,
)
)
v.
)
)
AIR & LIQUID SYSTEMS
)
CORPORATION (sued as successor-by
)
merger to Buffalo Pumps, Inc.), et al.,
)
)
)
Defendants.
)
____________________________________)

ORDER

This matter is before the court on defendant William Powell Company’s (“Powell”)
motion for summary judgment (DE # 206); defendant Flowserve Corporation’s (“Flowserve”)
motion for summary judgment (DE # 229); and defendant John Crane, Incorporated’s (“John
Crane”) motion for summary judgment (DE # 236). Responses in opposition have been filed.
(DE ## 264, 268, 272.) Replies to responses in opposition have also been filed. (DE ## 281,
283, 284.)
Also pending before the court are the following motions in limine: Faye Gore’s
(“plaintiff”) motion to exclude unreliable causation opinions of any defense experts (DE # 205);
plaintiff’s motion to exclude testimony of defense experts John Henshaw MPH CIH
(“Henshaw”) and Amy Madl, Ph.D., DABT (“Madl”) (DE # 211); defendant E.I. Dupont De
Nemours & Company’s (“Dupont Company”) motion to exclude opinion testimony of Dr. Edwin
Holstein (“Holstein”) (DE # 216); and defendant John Crane’s motion to exclude expert

testimony premised on the “each and every exposure” theory of causation (DE # 248).
Responses in opposition have been filed. (DE ## 252, 253, 254, 258, 261, 262, 263, 265, 267,
270, 271, 274, 275, 276.) Replies to responses in opposition have also been filed. (DE ## 282,
285.)
I.

BACKGROUND

On 9 June 2015, Wade Gore (“Gore”) and plaintiff filed a complaint in the Middle
District of North Carolina asserting the following claims: negligence, product liability, breach of
implied warranty, willful and wanton conduct, failure to warn, conspiracy, and premise liability,
based on Gore’s asbestos exposure while employed at the Dupont Plant (“Dupont”) in Leland,
North Carolina.1 (DE # 1.) On 1 August 2016, the action was transferred to this district. (DE #
138.) The current defendants to this action are: Air & Liquid Systems Corporation, Dupont
Company, Flowserve, Powell, Armstrong, International, Inc., Aurora Pump Company, Goulds
Pumps, Inc., and John Crane.
The undisputed facts are as follows. Gore was diagnosed with mesothelioma in May
2015 and died the same year. (See Pl.’s Statement Material Facts (DE # 266) at 13; Flowserve’s
Statement of Material Facts (DE # 233) at 1; John Crane’s Mem. Supp. Summ. J. (DE # 239) at
1; Powell Mem. Supp. Summ. J. (DE # 207) at 2.) Gore worked for Daniels Construction at
Dupont from approximately 1971 to at least 1990. (See Pl.’s Statement Material Facts (DE #
266) at 25-26; Flowserve’s Statement of Material Facts (DE # 233) at 1; John Crane’s Statement
of Material Facts (DE # 238) at 1; Powell Mem. Supp. Summ. J. (DE # 207) at 2.) From 1972 to

 After Gore’s death, plaintiff filed an amended complaint as the executrix of Gore’s estate to allege wrongful death
under North Carolina’s wrongful death statutes, N.C. Gen. Stat. § 28a-18-1 et seq. (DE # 160.) The amended
complaint did not change the nature of the claims asserted.  

1

2

1975, Gore worked as an insulator, insulating pipes, pumps, and valves. (See Pl.’s Statement
Material Facts (DE # 266) at 26; Flowserve’s Statement of Material Facts (DE # 233) at 2; John
Crane’s Statement of Material Facts (DE # 238) at 1; Powell Mem. Supp. Summ. J. (DE # 207)
at 2.)
From either 1975 or 1976 to the 1980s, Gore was a maintenance worker, servicing
gaskets, valves, packing, and pumps. (See Pl.’s Statement Material Facts (DE # 266) at 1-3;
Flowserve’s Statement of Material Facts (DE # 233) at 2; John Crane’s Statement of Material
Facts (DE # 238) at 1; Powell Mem. Supp. Summ. J. (DE # 207) at 2.) Then, in the 1980s or
1990, Gore became maintenance foreman. (See Pl.’s Statement Material Facts (DE # 266) at 3;
Flowserve’s Statement of Material Facts (DE # 233) at 2; John Crane’s Statement of Material
Facts (DE # 238) at 1; Powell Mem. Supp. Summ. J. (DE # 207) at 2.) As maintenance foreman,
Gore continued to service gaskets, valves, packing, and pumps. (See Pl.’s Statement Material
Facts (DE # 266) at 3; Flowserve’s Statement of Material Facts (DE # 233) at 1; John Crane’s
Statement of Material Facts (DE # 238) at 2; Powell Mem. Supp. Summ. J. (DE # 207) at 2.)
The disputed facts, in the light most favorable to plaintiff, follow. There were four types
of equipment at Dupont that allegedly exposed Gore to asbestos: gaskets, pumps, valves, and
packing. Gaskets are a piece of material that help seal equipment. At Dupont, gaskets were used
on both pumps and valves. (See Pl.’s Statement Material Facts (DE # 266) at 3-4.) “A typical
pump used three gaskets, one on the outlet or out-take, one on the inlet or intake and one inside
the pump housing.” (See Pl.’s Statement Material Facts (DE # 273) at 4.) “The typical valve
had three gaskets: the bonnet gasket and two flange gaskets.” (See Pl.’s Statement Material
Facts (DE # 266) at 4.) There were several types of gaskets at Dupont: asbestos gaskets (sheet
and precut), Teflon gaskets, spiral-wound gaskets, and rubber gaskets. (Id.) Asbestos sheet
3

gaskets were used on pipes and equipment running high temperature steam, acid, and corrosive
materials, because of asbestos’s unique thermal stability. (Id. at 5.) Unlike asbestos gaskets,
teflon and rubber gaskets could not be installed on either a high temperature steam system or on
lines running acetic or corrosive materials because they would melt. (Id.) Similarly, spiralwound metal gaskets were not used on pumps, valves or pipes in high temperature steam
applications. (Id.) During his time as a maintenance worker, Gore worked the most prevalently
with asbestos gaskets. (Id.) Gore was able to differentiate between asbestos gaskets and the
other types of gaskets. (Id. at 4.)
To service gaskets on either valves or pumps, Gore would remove the old gasket from the
flange using a putty knife with a hammer, followed by either an electrical drill with a wire brush,
or wire brush on its own, to remove the gasket material. (Id. at 5-6.) During this process,
asbestos material would release into the air. (Id. at 6.) Once the old gasket was removed, Gore
would install a new gasket. (Id.) Gore used new sheet gaskets on the flanges. (Id.) To install a
new gasket, Gore would cut a piece of sheet to the size of the needed gasket. (Id.) This process
created dust on Gore’s desk and person. (Id. at 7.)
Of the three major sheet gaskets used at Dupont for valve flanges, one was manufactured
by John Crane. (See Pl.’s Statement of Facts (DE # 273) at 6.) Gore knows he used John Crane
333 gaskets on steam systems and John Crane 2112 gaskets on high corrosive materials. (Id. at
6-7; see also DE # 273-2, at 30.) “On a frequent and regular basis, [] Gore replaced flange
gaskets from a valve designed to stop [acetic] fluid with new John Crane 2112 gaskets.” (See
Pl.’s Statement of Facts (DE # 266) at 7.) “John Crane’s 2112 gasket was 60 percent blue
crocidolite asbestos mixed with an acid resistant material.” (Id.) “John Crane’s 333 gaskets

4

[also] contained asbestos.” (Id.). While servicing asbestos gaskets, Gore also worked on a
frequent and regular basis with Powell valves. (Id. at 4.)
Gore also serviced pumps. As a maintenance worker, Gore typically worked in the
“TPA” buildings at Dupont, where chemical mixing occurred. (See id. at 1-2.) In the TPA
buildings, pumps carried either liquids, acetic or sulfuric acids, or pumped steam. (See id. at 3.)
There were hundreds of pumps at Dupont. (See Pl.’s Statement Material Facts (DE # 269) at
11.) Specifically, Gore worked on Durco pumps.2 Gore knew the pumps were Durco because
the brand name was on the pumps. (Id. at 3.) “All Durco pumps had an asbestos-containing
Durabla gasket located between the pump housing and the rear cover plate, called the rear cover
plate gasket.” (Id. at 17.) “Durco pumps were sold with asbestos-containing rear cover plate
gaskets as the standard material until 1986.” (Id.)
While servicing valves and pumps, Gore also replaced asbestos packing. “Packing is a
cord-like material used around the stems of valves and pumps at the point where they attach to a
motor to prevent the stems from working loose.” (Id. at 10.) When Gore removed the dry
asbestos packing, it would come out in brittle pieces. (Id. at 14.) This process was onerous and
created dust. (Id.) “Between 1975 and the mid-1980s, Mr. Gore remembered hundreds of times
when he removed the same gaskets and packing that he had personally installed on the same
valves during a prior shutdown or during preventative maintenance; this was true for all the
valves at DuPont[.]” (Id. at 15.) Gore personally removed packing from Durco valves at Dupont.
(Id. at 14.) Gore knows this because “Durco” was stamped across the housing of the valve. (See

 Flowserve was formerly known as Duriron Company (“Durco”) and is the successor-in-interest to Valtek, Inc.
(“Valtek”). (See Flowserve’s Mem. Supp. Summ. J. (DE # 229-1) at 1.) 

2

5

id. at 12.) “Durco sold four types of packing, all of which contained asbestos until 1980.” (Id. at
17.)
Gore also removed packing from Powell valves on a frequent and regular basis. (See
Pl.’s Statement Material Facts (DE # 266) at 4.) All Powell steel valves contained asbestos
packing until the late 1980s. (Id. at 14.) “Many of the Powell valves at DuPont were stainless
steel for running acid.” (Id. at 25.) Gore knows the valves and packing were Powell because
“Powell” was stamped across either the housing of the valve or on the packing spool. (See id. at
4, 10.) Specifically, “[d]uring major plant shutdowns in 1975 and 1976 [Gore] personally
worked on a frequent and regular basis on Powell valves that had never been serviced before”
and remembered when he needed to service them again. (Id. at 11.)
II.
A.

DISCUSSION

Motions for Summary Judgment
1.

Standard of Review

Summary judgment is appropriate when the record as a whole reveals no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). The party seeking
summary judgment initially must demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden,
the nonmoving party may not rest on the allegations or denials in its pleading, Anderson, 477
U.S. at 248–49, but “must come forward with specific facts showing that there is a genuine issue
for trial,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(emphasis and quotation omitted). A trial court reviewing a motion for summary judgment
should determine whether a genuine issue of material fact exists. Anderson, 477 U.S. at 249. In
6

making this determination, the court must view the evidence and the inferences drawn therefrom
in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
2.

Negligence, Product Liability, Breach of Implied Warranty, Willful and Wanton
Conduct, and Failure to Warn Claims

In North Carolina, a plaintiff in a personal injury asbestos case,
must prove more than a casual or minimum contact with the product containing
asbestos in order to hold the manufacturer of that product liable. Instead, the
plaintiff must present evidence of exposure to a specific product on a regular basis
over some extended period of time in proximity to where the plaintiff actually
worked.
Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 716 (4th Cir. 1995) (internal citations and
punctuation omitted). “Thus, in any asbestos case, a plaintiff must (1) identify an asbestoscontaining product for which a defendant is responsible, (2) prove that he has suffered damages,
and (3) prove that defendant’s asbestos-containing product was a substantial factor in causing his
damages.” Agner v. Daniel Int’l Corp., No. CIV 3:98CV220, 2007 WL 57769, *4 (W.D.N.C.
Jan. 5, 2007) (unpublished) (internal citation and punctuation omitted). “[P]laintiff must make a
showing with respect to each defendant[.]” Id.
For the third factor, “[t]o support a reasonable inference of substantial causation from
circumstantial evidence, there must be evidence of exposure to a specific product on a regular
basis over some extended period of time in proximity to where the plaintiff actually worked.”
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986); compare Jones,
69 F.3d at 716 (exposure to asbestos dust on a daily basis from 1952 to the 1970s demonstrated
substantial causation); Haislip v. Owens-Corning Fiberglas Corp., No. 95-1687, 1996 WL
273686, *2 (4th Cir. 1996) (unpublished table decision) (exposure to heavy concentrations of
asbestos dust over a nine-month period sufficient to demonstrate substantial causation); Wilder
v. Amatex Corp., 336 S.E.2d 66, 68 (N.C. 1985) (finding statements in a plaintiff’s affidavit that
7

he was exposed to asbestos-containing pipe covering and block in 1954, 1956, 1957, and 1970
and unidentified asbestos-containing pipe covering and block in 1966, 1967, 1973, 1974, and
1975, enough to survive a summary judgment motion to prove exposure at trial); with Pace v.
Air & Liquid Sys. Corp., 642 F. App’x 244, 248-49 (4th Cir. 2016) (finding no evidence of
substantial causation when the only evidence was a co-worker who speculated plaintiff “may
have assembled” pumps over the course of 20 years, but could not testify about a specific pump
plaintiff worked on); Logan v. Air Prod. & Chemicals, Inc., No. 1:12-CV-1353, 2014 WL
5808916, *3 (M.D.N.C. Nov. 7, 2014) (unpublished) (finding “infrequent” repair of valves not
enough to meet the pleading standard of frequency for an asbestos claim).
a.

Powell

Powell moves for summary judgment on the basis that plaintiff cannot demonstrate that
Gore was exposed to Powell products with frequency, regularity, and proximity. In response,
plaintiff identifies asbestos-containing Powell valves Gore worked with at Dupont. (See Pl.’s
Statement Material Facts (DE # 266) at 4, 10, 14.) She also demonstrates that Gore removed
asbestos-containing packing from Powell steel valves on a frequent and regular basis. (Id. at 4,
11.) Specifically, plaintiff has come forward with evidence that “[d]uring major plant shutdowns
in 1975 and 1976 [Gore] personally worked on a frequent and regular basis on Powell valves that
had never been serviced before” and remembered when he needed to service those specific
asbestos-containing valves again. (Id. at 11.)
Powell also contends that the Fourth Circuit requires a plaintiff in an asbestos action to
demonstrate “the amount, duration, [and] intensity” of his or her exposure. (Def.’s Mem. (DE #
207) at 9 (citing Yates v. Air & Liquid Sys. Corp., No. 5:12-CV-752-FL, 2014 WL 4923603,
*24 (E.D.N.C. Sept. 30, 2014) (unpublished)). However, the court finds that, at most, “[t]he
8

Fourth Circuit has taken note of the intensity of exposure in an asbestos case,” but has not
conclusively required a plaintiff to demonstrate these additional factors to survive a motion for
summary judgment. Yates, 2014 WL 4923603, at *25.
The court concludes plaintiff has made a sufficient showing with respect to Powell’s
products. Powell’s motion will be denied on the issue of liability.
b.

Flowserve

Flowserve moves for summary judgment on the basis that plaintiff failed to produce
evidence of Gore’s actual exposure to any of Flowserve’s Durco or Valtek asbestos-containing
products. Specifically, Flowserve alleges plaintiff did not produce evidence that Gore was
actually exposed to asbestos for which Durco was responsible. Further, Flowserve argues Gore
could not identify any specific details or model numbers for Durco pumps he allegedly serviced.
In response, plaintiff contends Gore worked with Durco pumps, gaskets, and valves. As
for pumps, plaintiff points to the fact that Gore identified that he worked with Durco pumps.
(See Pl.’s Statement Material Facts (DE # 269) at 3.) All Durco pumps had an asbestoscontaining Durabla gasket located between the pump housing and the rear cover plate gasket
until 1986. (Id. at 17.) For gaskets, plaintiff demonstrates that from 1974 or 1975 until the mid1980s, Gore personally removed asbestos gaskets from Durco valves on a frequent and regular
basis. (Id. at 15.) Gore states he knows this because he saw Durco’s stamp on the valve. (Id. at
12.) For packing, plaintiff demonstrates that from 1974 or 1975 until the mid-1980s, Gore
personally removed packing from Durco valves on a frequent and regular basis. (Id. at 14-15.)
All Durco packing contained asbestos until 1980. (Id. at 17.)

9

The court concludes plaintiff has made a sufficient showing with respect to Flowserve’s
Durco products. However, plaintiff has failed to come forward with any evidence of
Flowserve’s Valtek products. Powell’s motion will be denied as to Flowserve’s Durco products
and granted as to Flowserve’s Valtek products.
c.

John Crane

John Crane moves for summary judgment on the basis that plaintiff has no evidence that
Gore’s exposure to either John Crane’s gaskets or packing is a substantial factor in causing
Gore’s damages. In response, plaintiff shows Gore worked specifically with John Crane 333 and
2112 gaskets on a frequent and regular basis. (Pl.’s Statement Material Facts (DE # 273) at 6-7.)
Plaintiff demonstrates that both John Crane 333 and 2112 gaskets contained asbestos. (Id. at 7.)
To further quantify his exposure, Gore states that of the three major sheet gaskets used at Dupont
for valve flanges, one was manufactured by John Crane. (See id. at 6.)
The court concludes plaintiff has made a sufficient showing with respect to John Crane’s
products. Accordingly, John Crane’s motion will be denied on the issue of its liability.
3.

Punitive Damages

Flowserve and John Crane also move for summary judgment on the issue of punitive
damages. North Carolina law establishes the standard for recovering punitive damages:
Punitive damages may be awarded only if the claimant proves that the defendant is liable
for compensatory damages and that one of the following aggravating factors was present
and was related to the injury for which compensatory damages were awarded:
(1) Fraud.
(2) Malice.
(3) Willful or wanton conduct.
N.C. Gen. Stat. § 1D–15(a). The existence of the aggravating factor must be proven by clear and
convincing evidence. Id. § 1D–15(b).
10

In this case, the aggravating factor is willful or wanton conduct. North Carolina defines
“[w]illful or wanton conduct” as “the conscious and intentional disregard of and indifference to
the rights and safety of others, which the defendant knows or should know is reasonably likely to
result in injury, damage, or other harm. ‘Willful or wanton conduct’ means more than gross
negligence.” Id. § 1D–5(7). Punitive damages can be awarded against a corporation only if “the
officers, directors, or managers of the corporation participated in or condoned the conduct
constituting the aggravating factor giving rise to punitive damages.” Id. § 1D–15(c); see also
McAfee v. Howard Baer, Inc., No. 1:15 CV 182, 2018 WL 411339, *6 (W.D.N.C. Jan. 12,
2018); George v. Greyhound Lines, Inc., 708 S.E.2d 201, 208 (N.C. Ct. App. 2011).
a.

Flowserve

Flowserve argues that plaintiff has presented no evidence that Flowserve’s officers,
directors, or managers participated in or condoned the alleged conducted to constitute an
aggravating factor under § 1D–15(a). In response, plaintiff contends that Flowserve knowingly
sold lethal asbestos-contaminating products to make a profit.
Plaintiff has failed to come forward with evidence that the officers, directors, or
managers of Flowserve participated in or condoned the sale of a knowingly dangerous product.
In her brief opposing summary judgment on this issue, plaintiff fails to cite to specific evidence
to support this contention. (See Pl.’s Mem. Opp’n Summ. J. (DE # 268) at 21.) In her statement
of material facts, plaintiff cites to a number of studies and articles demonstrating the negative
health effects of asbestos. (See Pl.’s Statement of Material Facts (DE # 269) at 18-20.)
However, plaintiff fails to point to evidence showing that Flowserve, through its officers,
directors, or managers, was aware of these studies and articles, and therefore fails to show
Flowserve’s actual knowledge. See Lee v. CertainTeed Corp., No. 5:13-CV-826-FL, 2015 WL

11

4526165, *9 (E.D.N.C. July 27, 2015) (finding that the “evidence did not raise a genuine issue as
to willful and wanton conduct because plaintiffs failed to show that defendants had actually read
the articles referenced, or knew of the studies, or knew of the dangers of asbestos in the
defendants’ products[]”). As such, the court discerns there is no genuine issue of material fact
regarding plaintiff’s request for punitive damages against Flowserve. Flowserve’s motion will
be allowed on this issue.
b.

John Crane

John Crane moves for summary judgment on the issue of punitive damages on the ground
that plaintiff fails to offer any evidence of its aggravated conduct. In response, plaintiff asserts
John Crane’s behavior was willful and wanton because it sold asbestos-containing products for
decades knowing the products were lethal. Specifically, plaintiff points to evidence that John
Crane sold asbestos-containing products since the 1930s and had actual knowledge that asbestos
was a health hazard from the 1970s. (See Pl.’s Statement of Facts (DE # 273) Ex. 8, at 43 (Q:
All right sir. Do I understand correctly that John Crane first heard that asbestos could cause
disease in about 1970? A: Yes.”).) She also relies on evidence that as early as 1943, John Crane
began using protective steps in the asbestos manufacturing process internally for employees and
in 1951, became subject to the Walsh-Healey Act which designated asbestos as a hazardous
material. (See id. at 16.) This evidence is sufficient to create a genuine issue of material fact
regarding John Crane’s knowledge.
Further, John Crane argues that a punitive damages award will have no deterrent effect
on it because it has stopped producing asbestos products. John Crane argues that under North
Carolina law, punitive damages can only be awarded when they deter the defendant from

12

committing a similar wrongful act. In response, plaintiff argues there is a deterrent effect on
John Crane’s behavior because it is “still alive” as a corporate entity.
While North Carolina law states that the purpose of punitive damages is to deter both the
individual and others from future bad conduct, it does not require a claimant to prove the
deterrent effect of the punitive damages. See Harrell v. Bowen, 655 S.E.2d 350, 352 (N.C.
2008); Rhyne v. K-Mart Corp., 594 S.E.2d 1, 13 (N.C. 2004); Cf. McGill v. Town of Coats, No.
5:12-CV-631-FL, 2013 WL 953929, *5 (E.D.N.C. Mar. 11, 2013) (“Because a decedent
defendant can no longer be punished or deterred for whatever egregiously wrongful acts he may
have committed the court held that a plaintiff may not assert a claim for punitive damages
against that defendant’s estate.”) (internal quotation marks and citation omitted). As such, John
Crane’s motion will be denied on this ground.
If its motion as to punitive damages is denied, John Crane requests a bifurcated trial on
the basis that it will be prejudiced if a jury considers evidence of punitive damages prior to a
determination of its liability. In North Carolina,
Upon the motion of a defendant, the issues of liability for compensatory damages and the
amount of compensatory damages, if any, shall be tried separately from the issues of
liability for punitive damages and the amount of punitive damages, if any. Evidence
relating solely to punitive damages shall not be admissible until the trier of fact has
determined that the defendant is liable for compensatory damages and has determined the
amount of compensatory damages. The same trier of fact that tried the issues relating to
compensatory damages shall try the issues relating to punitive damages.
N.C. Gen. Stat. § 1D–30.
On a defendant’s motion pursuant to this statute, the court must bifurcate the
compensatory damages phase of the trial from the punitive damages phase of the trial. Land v.
Land, 687 S.E.2d 511, 517 (N.C. Ct. App. 2010). However, “[b]ifurcation is primarily
procedural in nature; therefore, federal procedural law applies.” Greenwood Motor Lines, Inc. v.

13

Saga Freight Logistics, LLC, No. 3:13-CV-529-RJC-DCK, 2015 WL 13610653, *1 (W.D.N.C.
Oct. 9, 2015) (unpublished) (citing Rosales v. Honda Motor Co., 726 F.2d 259, 260 (5th Cir.
1984)). Accordingly, the court is not required to grant defendant’s motion in accordance with
N.C. Gen. Stat. § 1D-30 and will instead consider whether bifurcation is warranted under Federal
Rule of Civil Procedure Rule 42(b). See id.
Rule 42 permits bifurcation “[f]or convenience, to avoid prejudice, or to expedite and
economize.” Fed. R. Civ. P. 42(b). A court is permitted considerable discretion in exercising its
powers under this rule. F & G Scrolling Mouse, L.L.C. v. IBM Corp., 190 F.R.D. 385, 387
(M.D.N.C. 1999). “Notwithstanding the broad discretion conferred by [this rule], the bifurcation
of issues and the separate trial of them is not the usual course of events.” Id. Having fully
considered John Crane’s arguments, the court finds that it has not met its burden. Specifically,
the court concludes given the number of defendants, bifurcation would not promote convenience
or be conducive to expedition and economy.
4.

Loss of Consortium

Flowserve also moves for summary judgment on the basis that any claim plaintiff asserts
for loss of consortium is encompassed by the North Carolina wrongful death statute. However,
plaintiff does not bring a standalone loss of consortium claim. Rather, she asserts loss of
consortium damages under North Carolina’s wrongful death statute, which is proper under North
Carolina law. See Latka v. Miles, No. 7:14-CV-10-FL, 2015 WL 1410378, *7 (E.D.N.C. Mar.
26, 2015), aff’d, 615 F. App’x 122 (4th Cir. 2015). Thus, Flowserve’s motion on the issue of
loss of consortium will be denied.

14

B.

Motions in Limine
To determine the admissibility of testimony under Rule 702 and Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579 (1993), a district court, as the gatekeeper, must ensure the proposed
expert testimony “rests on a reliable foundation and is relevant to the task at hand.” Nease v.
Ford Motor Co., 848 F.3d 219, 229 (4th Cir.) (internal quotations omitted), cert. denied, 137 S.
Ct. 2250 (2017). With respect to relevance, “the proposed expert testimony must have a valid
scientific connection to the pertinent inquiry.” Id.; see also Daubert, 509 U.S. at 591 (“The study
of the phases of the moon, for example, may provide valid scientific knowledge about whether a
certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of
fact. However . . . evidence that the moon was full on a certain night will not assist the trier of
fact in determining whether an individual was unusually likely to have behaved irrationally on
that night”). Simply put, the testimony must be helpful. See Fed. R. Evid. 702 (defining
helpfulness as whether the evidence or testimony will assist the trier of fact to understand the
evidence or to determine a fact at issue).
“With respect to reliability . . . the proffered expert opinion [must be] based on scientific,
technical, or other specialized knowledge and not on belief or speculation, and inferences must
be derived using scientific or other valid methods.” Nease, 848 F.3d at 229 (internal quotation
marks and citation omitted). Daubert provides four non-exhaustive factors for the district court
to consider to determine reliability. Id.
First, “a key question to be answered in determining whether a theory or
technique is scientific knowledge that will assist the trier of fact will be whether it
can be (and has been) tested.” A second question to be considered by a district
court is “whether the theory or technique has been subjected to peer review and
publication.” Publication regarding the theory bears upon peer review; “[t]he fact
of publication (or lack thereof) in a peer reviewed journal will be a relevant,
though not dispositive, consideration in assessing the scientific validity of a 
15

particular technique or methodology on which an opinion is premised.” Third, “in
the case of a particular scientific technique, the court ordinarily should consider
the known or potential rate of error.” Fourth. . .“general acceptance” is
nonetheless relevant to the reliability inquiry. “Widespread acceptance can be an
important factor in ruling particular evidence admissible, and a known technique
which has been able to attract only minimal support with the community may
properly be viewed with skepticism.”
Id. (citations omitted) (alterations in original). The district court has “broad latitude” in
determining whether these factors apply in a particular case. Id.
1.

Holstein

Holstein is “a licensed physician in the commonwealth of Massachusetts” who is certified
in Internal Medicine and “Preventative Medicine, with a subspecialty in Occupational
Medicine.” (Holstein Report (DE # 249-3) at 7.) From 1976 to 1984, Holstein was involved in
the “original research on the health effects of asbestos.” (Id.) As part of this research, Holstein
“work[ed] under the direct supervision of Dr. Irving Selikoff, who was widely regarded as the
foremost expert in the world on the health effects of asbestos until his death in 1992.” (Id.) In
1984, Holstein opened a Preventative Medicine and Occupational Health consulting practice. Id.
Including his clinical experience, records reviews, and x-ray reviews, Holstein has “evaluated
over ten thousand patients with exposure to asbestos.” (Id.) According to plaintiff, Holstein may
offer expert opinion on Gore’s exposure to asbestos, the conditions at the sites of Gore’s
exposure to asbestos, the health risks associated with asbestos, the general background levels of
asbestos release, the scientific community’s knowledge regarding asbestos and asbestos diseases,
and specific opinions relating to asbestos fibers. (Holstein Disclosure (DE # 224) at 1-6.)
a.

Dupont Company’s Motion

Dupont Company moves to exclude Holstein’s proffered expert opinion on “whether
Dupont [Company] did anything wrong in the 1970s and 1980s in its efforts to protect [] Gore
16

from asbestos exposures in the context of OSHA regulations and other requirements in that time
frame.” (Dupont’s Mem. Supp. (DE # 221) at 2; see also Holstein Disclosure (DE # 224) at 2.)
Specifically, Dupont Company challenges Holstein’s statement in his deposition for this case
that “I think Dupont failed to put in place measures that would protect employees of contractors
from exposure to asbestos on their premises.” (Dupont’s Mem. Supp. (DE # 221) at 6.) Dupont
Company contends this opinion was derived from two sources: (1) the testimony of Gore
regarding his work at Dupont and (2) a summary of Gore’s exposure history prepared by
plaintiff’s counsel. (Id. at 2, 6; Dupont’s Reply (DE # 282) at 3.) Dupont Company argues
Holstein did not rely on important materials, such as the asbestos control policies and procedures
that Dupont Company had in place in the 1970s and 1980s involving asbestos warnings, asbestos
air monitoring records at Dupont, and Gore’s employment records. (Dupont’s Mem. Supp. (DE
# 221) at 2-3.) According to Dupont Company, its records, as well as Daniel Construction
company’s records, were available to Holstein, but he failed to review them. (Id. at 7-9, 12;
Dupont’s Reply (DE # 282) at 4.) Further, Dupont Company contends that Holstein’s
occupational status does not qualify him to offer expert opinion on Dupont Company’s history of
regulatory compliance. (Dupont’s Reply (DE # 282) at 6.)
In response, plaintiff contends the documents that Dupont Company insists Holstein
should have reviewed to formulate his expert opinion were due on 24 February 2017, but were
not produced by defense counsel until 13 March 2017. (Pl.’s Resp. Opp’n (DE # 270) at 2, 4.)
Because Holstein’s expert report was due two weeks after document production, plaintiff
contends that in order to comply with the expert report deadline, Holstein did not have sufficient
time to review these documents. (Id. at 4.) Nevertheless, even if these documents were timely
produced, plaintiff argues that Dupont Company’s corporate documents were not scientific data
17

that Holstein would need to rely upon to form his expert opinion. (Id. at 6.) Additionally,
plaintiff argues Dupont Company mischaracterizes Holstein’s testimony, which according to
plaintiff, concerns general industry knowledge or “state of the art” testimony, and not testimony
solely about Dupont Company’s corporate documents. (Id. at 7; see Holstein Report (DE # 2709) at 7-10.)
The court agrees with plaintiff that Holstein’s expert opinion is properly characterized as
state of the art testimony. State of the art testimony represents,
all of the available knowledge on a subject at a given time, and this includes scientific,
medical, engineering, and any other knowledge that may be available. State of the art
includes the element of time: What is known and when was this knowledge available.
Horne v. Owens-Corning Fiberglas Corp., 4 F.3d 276, 281 (4th Cir. 1993) (citation omitted).
State of the art evidence “is scientific in nature and results from a cumulative review of a field
over time.” Id. It is admissible in products liability and negligence actions. See id. (citing
Rowan County Bd. of Educ. v. United States Gypsum Co., 407 S.E.2d 860, 871 (N.C. 1991),
disc. rev. denied, 418 S.E.2d 648 (1992)).
Holstein testified as follows:3
Q:

Based upon the work that you’ve done in this case regarding Mr. Gore’s claims,
do you have any opinions as to what you think DuPont may have done wrong?

A:

I think DuPont failed to put in place measures that would protect employees of
contractors from exposure to asbestos on their premises.

Q:

And is that opinion based upon your reading of Mr. Gore’s deposition testimony?

A:

Yes, sir. Well—

Q:

Any other basis?

3

Dupont Company also challenged Holstein’s expert disclosure prepared by plaintiff’s counsel. Holstein’s
deposition (5 June 2017) (DE # 226) and subsequent expert report (31 March 2017) (DE # 225) took place after
counsel submitted Holstein’s expert disclosure form (6 March 2017) (DE # 224). Because the deposition and report
encapsulate Holstein’s opinions in his own words and were produced after counsel submitted the expert disclosure
form, the court analyzes only these documents.

18

A:

Yes. I mean, I wouldn’t expect Mr. Gore to have known all the things that might
have done or should have been done. So, obviously, there’s a context here of my
broader knowledge of this field.

(Holstein Dep. (DE # 226) at 16.) In forming his opinions regarding the industry knowledge,
Holstein relied on upon “over 600 asbestos references, including [] Gore’s medical records,
pathology reports, his death certificate, medical billing records, his social security statement of
earnings, the expert reports of Dr. Steven Compton and Dr. Richard Kradin, Plaintiff's Second
Amended Complaint, discovery documents related to several entities, including John Crane
documents available to him at the time he composed his report.” (Pl.’s Resp. Opp’n (DE # 270)
at 12; Holstein Dep. (DE # 270-25) at 4-5; Holstein Report Reliance Materials (DE # 270-9) at
41-87; Holstein Add. Reliance Materials (DE # 270-9) at 88.) To support his state of the art
testimony, Holstein did not have a duty to rely upon any specific records, see Horne, 4 F.3d at
281 (finding state of the art evidence admissible when it is a cumulative review of a field over
time), particularly documents that were not available in time for his review. Accordingly,
Holstein is qualified to testify and give his opinion on the state of mind in the community about
asbestos exposure given the materials he reviewed and his background. Dupont Company’s
motion will be denied.
b.

John Crane’s Motion

John Crane moves to exclude Holstein’s testimony to the extent it is based on the “each
and every exposure theory.” (John Crane’s Mem. Supp. (DE # 249) at 2.) Specifically, John
Crane alleges Holstein will offer the opinion that Gore’s occupational exposures to gaskets,
packing, pumps, and valves, cumulatively constituted the direct and sole cause of mesothelioma.
(Id.; see also (DE # 249-3) at 4.) John Crane argues this opinion conforms to the “each and
every exposure” theory, which courts have rejected under Daubert. Additionally, if this expert
19

opinion testimony is not excluded, defendants contend that plaintiff will not have to prove the
substantial factor in causation element of her case because it will be decided as a matter of law
from Holstein’s opinion. (John Crane’s Resp. Opp’n (DE # 254) at 13; Def.’s Omnibus Resp.
Opp’n (DE # 267) at 8.)
In response, plaintiff argues Holstein will not offer the opinion that every exposure to
asbestos causes mesothelioma generally, or that it specifically caused Gore’s mesothelioma.
(Pl.’s Resp. Opp’n (DE # 253) at 1.) Instead, plaintiff states Holstein will testify that
mesothelioma is caused by an individual’s cumulative asbestos exposure and exposures which
contribute to the individual’s cumulative dose can be considered substantial factors if
mesothelioma results. (Id.) Similarly, plaintiff claims Holstein’s testimony is proper because he
intends to explain the significance of the “each and every exposure” theory in terms of how it
increased overall exposure, as opposed to every exposure causing mesothelioma. (Id. at 6; see
also Holstein Report (DE # 253-8) Ex. 7 at 13.)
Mesothelioma follows a dose response relationship. See, e.g., Krik v. Crane Co., 76 F.
Supp. 3d 747, 752 (N.D. Ill. 2014). “[T]he dose-response relationship is a relationship in which
a change in amount, intensity, or duration of exposure to an agent is associated with a change—
either an increase or decrease—in risk of disease.” McClain v. Metabolife Int’l, Inc., 401 F.3d
1233, 1241–42 (11th Cir. 2005) (internal quotation marks and citation omitted). Given this
relationship, scientists disagree on whether all asbestos exposures, or all exposures over the
general public’s exposure level (i.e. background level), contribute to the cumulative effect of
exposure to establish legal causation. See Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 493
(6th Cir. 2005) (if a court were to allow testimony about every exposure theory, it would “permit
the imposition of liability on the manufacturer of any product with which a worker had the
20

briefest of encounters on a single occasion”); Krik, 76 F. Supp. 3d at 752 (rejecting plaintiff’s
expert opinion “that any exposure to asbestos, even the very first one, regardless of dosage is
sufficient to cause asbestos-induced lung cancer” because there is no study that shows there is a
known threshold or safe level of asbestos exposure).
As a result, courts have rejected the theory of causation known as the “each and every
exposure” theory. See Sclafani v. Air & Liquid Sys. Corp., No. 2:12-CV-3013-SVW-PJW, 2013
WL 2477077, *4 (C.D. Cal. May 9, 2013) (unpublished) (finding the “each and every exposure”
theory as reaching an impermissible legal conclusion); Anderson v. Ford Motor Co., 950 F.
Supp. 2d 1217, 1223-24 (D. Utah 2013) (finding the “each and every exposure” theory
“troubling” because experts do not have the scientific information to allow them to testify in
further detail regarding a dosage that does pose a significant risk of mesothelioma). This theory
is understood to be “that each and every exposure to asbestos by a human being who is later
afflicted with mesothelioma, contributed to the formation of the disease.” Smith v. Ford Motor
Co., No. 2:08-CV-630, 2013 WL 214378, *1 (D. Utah Jan. 18, 2013) (unpublished); see Yates v.
Ford Motor Co., 113 F. Supp. 3d 841, 846 (E.D.N.C. 2015) [hereinafter Yates II] (finding the
opinion that “[e]ach and every exposure to asbestos that an individual with mesothelioma
experienced in excess of a background level contributes to the development of the disease” is the
“each and every exposure” theory). If experts were allowed to offer this opinion, it would
“render the substantial factor prong of the causation test meaningless.” Sclafani, 2013 WL
2477077, at *4; see Anderson, 950 F. Supp. 2d at 1222–23 (finding that this would imply
specific causation regardless of the dose of the exposure or the type of fiber the individual was
exposed to). The “each and every exposure” theory is also incompatible with the basic science
of toxicology. See Krik, 76 F. Supp. 3d at 751 (finding that an opinion that a single fiber can be
21

substantially causative when the disease at issue is dose responsive scientifically inconsistent).
However, courts have accepted similar expert testimony under Daubert “where a plaintiff relies
on proof of exposure to establish that a product was a substantial factor in causing injury,” if “the
plaintiff [] show[s] a high enough level of exposure that an inference that the asbestos was a
substantial factor in the injury is more than conjectural.” Moeller v. Garlock Sealing Techs.,
LLC, 660 F.3d 950, 955 (6th Cir. 2011) (internal quotation marks and citation omitted).
Holstein’s opinion that Gore’s multiple cumulative exposures to gaskets, packing, and
pumps, and valves, caused his mesothelioma is not based upon the “each and every exposure”
theory. See Walashek v. Air Liquid Sys. Corp., No. 14CV1567 BTM (BGS), 2016 WL 614030,
*6 (S.D. Cal. Feb. 16, 2016) (finding Holstein’s testimony “that each exposure to asbestos
contributes to the total dose of asbestos that causes mesothelioma, and as the total dose of
asbestos increases, the average period necessary for the disease to develop shortens” not the
“each and every exposure” theory); Yates II, 113 F. Supp. 3d at 846 (finding that the expert’s
theory was not the “each and every exposure” theory because nowhere in either of that expert’s
reports does he use the phrase “each and every exposure” or other equivalent phrases). While
Holstein’s testimony uses the phrase “each and every exposure,” he uses it to explain his theory
based upon an individual’s cumulative dose. (Holstein Report (DE # 253-8), Ex. 7 at 13.) See
Moeller, 660 F.3d at 955 (opinions which focus on the substantial contributing factors of
mesothelioma, rather than each and every exposure, are permissible expert opinion). Holstein
goes as far as to deny espousing the view of the “each and every exposure” theory in his opinion:
The scientific evidence indicates that each and every exposure to asbestos increases the
total exposure and that the progressively increasing cumulative exposure increases the
risk of developing an asbestos-related disease, including mesothelioma and lung cancer.
Moreover, each and every exposure, by increasing the cumulative exposure, shortens the
average latency period for the appearance of asbestos-related diseases, including
22

mesothelioma and lung cancer, on average . . .  The best scientific evidence is that all
significant exposures contribute to the causation of a subsequent mesothelioma or lung
cancer. While theoretically possible, I do not believe that exposure to a single asbestos
fiber will cause mesothelioma or any other asbestos disease. Nor do I believe that every
fiber contributes to the development of mesothelioma. Rather, my opinion is that every
significant exposure to asbestos contributes to cause mesothelioma and lung cancer.
(Holstein Report (DE # 253-8), Ex. 7 at 13.) Accordingly, John Crane’s motion to exclude his
testimony will be denied.
2.

Kradin

Kradin is “a pulmonologist and pathologist licensed to practice in Massachusetts.”
(Kradin Report (DE # 249-2) at 2.) Kradin is certified in Internal Medicine, Anatomic
Pathology, and Pulmonary Medicine. (Id.) Presently, Kradin is an Associate Physician and
Pathologist at Massachusetts General Hospital, and an Associate Professor of Pathology and
Medicine at Harvard Medical School. (Id.) At Harvard, Kradin directs postgraduate research on
asbestos-related diseases. (Id.) Kradin has authored more than 100 articles, including articles
specifically on asbestos-related diseases. (Id. at 3.) As a clinical physician, Kradin has
personally reviewed hundreds of biopsies of asbestos-related malignancies, including malignant
mesothelioma, and has performed numerous autopsies in patients with asbestos-related diseases.
(Id.) Kradin may offer expert opinion on asbestos-disease causation, on generally accepted
principles of asbestos exposure, and specifically as to Gore’s exposure. (Id. at 3-20.)
Similar to Holstein, John Crane moves to exclude expert testimony by Kradin that
exposure to each and every fiber of asbestos is a cause of Gore’s mesothelioma. (John Crane’s
Mem. Supp. (DE # 249) at 2.) Specifically, John Crane contends Kradin will offer opinion that:
mesothelioma is a cumulative dose response disease, that there is no safe level of
asbestos exposure, that all occupational, domestic or para-occupational exposure to
asbestos—even brief or low-level exposures—must be considered a cause of an
23

individual’s mesothelioma, there is no level of asbestos exposure above background
levels that has been shown to not to contribute to causing mesothelioma.
(Id.)
Kradin’s opinion does not reflect the “each and every exposure” theory. On the topic,
Kradin offers his opinion as follows:
If a person sustains asbestos exposures above background/ambient levels of exposure as
reflected by an occupational, para-occupational and/or domestic asbestos exposure and
goes on to develop mesothelioma, it is my opinion that the exposures above background
levels, taken in context of the individual's total (cumulative) asbestos exposures, are
significant and non-trivial, and are medical and scientific causes in the development of
the individual's mesothelioma. In the legal context, such asbestos exposures are often
described or classified as "substantial contributing factors" or "contributing causes" or
"significant factors" to the development of the individual's mesothelioma. It is not my
opinion that a "single fiber," or that "each and every" or "any" exposure to asbestos, even
those below background levels, are a substantial contributing factor in causing
mesothelioma. To the contrary, as noted above, a single day of exposure at the current
OSHA PEL of 0.1 fl/cc equates to literally years of exposure to what the ATSDR reports
as typical rural ambient asbestos exposures of 0.00001 fl/cc.
(Kradin Report (DE # 249-2) at 12.) Contrary to the “each and every exposure” theory, Kradin’s
opinion is “taken in context of the individual’s total (cumulative) asbestos exposure[,]” (id.),
otherwise known as the individual’s dose, and does not assert that every single fiber above
background level is a substantial contributing factor in causing mesothelioma, see Yates II, 113
F. Supp. 3d at 849 (finding the opinion that “there is no basis for accepting any workplace or
non-occupational exposure to asbestos above ambient background as ‘safe[]’” not each and every
exposure theory). Further, Kradin’s opinion does not render the substantial factor prong
meaningless; it evaluates the total dose the person sustained by his or her individual exposures,
accounting for the number of exposures over background level. Cf. Anderson, 950 F. Supp. 2d
at 1222–23 (finding that “testimony that every exposure [decedent] had to an asbestos fiber
contributed to the causation of his disease would imply specific causation regardless of the dose

24

of the exposure or the type of fiber to which [decedent] was exposed.”). Thus, John Crane’s
motion to exclude his testimony will be denied.
3.

Brody

Brody is a “Professor Emeritus in the Pathology Department at Tulane University
Medical School” and an “Adjunct Professor at North Carolina State University in the
Department of Molecular and Biomedical Sciences.” (Brody Report (DE # 249-1) at 2.)
Throughout his career, Brody has studied molecular biomedical science, which focuses on the
genetic foundations of disease. (Id.) Since the 1970s, Brody’s research has concentrated on how
asbestos causes lung disease. (Id.) Brody has “published more than 150 articles in the peerreviewed scientific literature dealing with lung cell biology, asbestos and lung disease[.]” (Id.)
Brody may offer expert opinion regarding the cellular structure of asbestos, but will not testify
specifically about Gore’s exposures. (Id.)
Similar to Holstein and Kradin, John Crane moves to exclude Brody’s expert testimony
to the extent it is based on the “each and every exposure” theory. (John Crane’s Mem. Supp.
(DE # 249) at 2.) In response, plaintiff contends that Brody does not intend to offer an opinion
that all exposures to asbestos cause mesothelioma, but rather, Brody will testify that every
exposure above a background exposure level is part of the cumulative exposure which can cause
mesothelioma. (Id. at 10; see also Brody Report (DE # 249-1) at 20.) Additionally, Brody will
testify about the cellular structure of asbestos. (Pl.’s Resp. Opp’n (DE # 253) at 9.)
John Crane mischaracterizes Brody’s opinion as based on the “each and every exposure”
theory by not providing Brody’s full opinion on the topic, which is:
Asbestos-Induced Cancers are Cumulative Dose Diseases
25

44. The asbestos-induced cancers are dose-response diseases, in that the more asbestos a
person is exposed to, the more likely that person is to develop disease. In the case of a
person who has developed an asbestos-related cancer, it is that individual’s cumulative
dose which has caused the disease. Lung cancer and mesothelioma are cumulative
diseases. As asbestos exposures occur over time, some proportion of those fibers are
retained in the lungs and can be translocated to the various sites where the diseases
develop, and the genetic errors caused by asbestos fibers accumulate. Scientists have
established that brief or low-level cumulative exposures to asbestos significantly increase
the risk of developing mesothelioma. Asbestos exposures above background levels as
short in duration as a few days can cause, or contribute to cause, mesothelioma.
No Safe Level above Background
45. Asbestos is the only known environmental cause of mesothelioma in the United
States. The consensus scientific opinion, as reflected by the conclusions of the IARC,
WHO[,] NIOSH, CPSC, and others, is that no amount of exposure to asbestos above the
background levels present in ambient air has been established as too low to induce
mesothelioma. The mainstream scientific community is in consensus that there is no safe
level of exposure to asbestos.
(Brody Report (DE # 249-1) at 20, 21.) Brody’s opinion demonstrates that mesothelioma is a
dose-responsive disease and an individual’s increasing exposure increases his or her risk of
developing mesothelioma. See McClain, 401 F.3d at 1241–42 (“[T]he dose-response
relationship is a relationship in which a change in amount, intensity, or duration of exposure to
an agent is associated with a change—either an increase or decrease—in risk of disease.”); Krik,
76 F. Supp. 3d at 752 (finding when evaluating mesothelioma causation, an opinion that it is
“theoretically possible that any amount of exposure could cause injury” reliable and different
from the inadmissible opinion that a “particular level of dosage experienced by a plaintiff was
sufficient to cause his or her particular injury”). Further, Brody does not seek to testify that each
and every one of Gore’s exposures caused his mesothelioma because he will not offer specific
testimony about Gore. See Larson v. Bondex Int’l, No. 09-69123, 2010 U.S. Dist. LEXIS
123090, *8 (E.D. Pa. Nov. 15, 2010) (unpublished) (finding that Brody may testify to educate
the jury on how asbestos contributes to disease, but not about specific causation in the case under
Daubert). John Crane’s motion will be denied.
26

4.

Henshaw

Henshaw is a consultant in environmental and occupational health and safety. (Henshaw
Report (DE # 218) at 3.) Henshaw graduated from the University of Michigan with a Master of
Environmental Health Administration and Industrial Health in 1974. (Id.) From 1975 to 2001,
Henshaw worked in environmental health, safety, and compliance for Monsanto, Solutia, and
Astaris. (Id.) From 2001 to 2003, Henshaw was the Assistant Secretary of Labor for the United
States Department of Labor’s Occupational Safety and Health Administration. (Id.) Thereafter,
he became a consultant. In his career, Henshaw has “conducted exposure monitoring and
assessments for hundreds of compounds, [] ha[s] been responsible for collecting thousands of
samples to assess worker exposures to potentially hazardous materials, including asbestos[,]” and
“personally sampled for asbestos during gasket replacement activities and assessed worker
exposures to asbestos while handling asbestos-containing gaskets and packing materials.” (Id.)
Henshaw may offer expert testimony relating to opinions concerning historical views and studies
on asbestos in industrial hygiene settings, Gore’s exposure to asbestos fibers, and John Crane’s
product warning.4 (Id. at 24.)
First, plaintiff moves to limit Henshaw’s opinions that “(1) chrysotile asbestos does not
cause mesothelioma and/or there is a threshold or minimum exposure to chrysotile asbestos
required to induce mesothelioma in humans, and (2) exposure to asbestos containing gaskets
does not cause mesothelioma and/or did not cause [] Gore’s mesothelioma.”5 (Pl.’s Mem. Supp.

 Henshaw compiled a second expert report solely for Dupont Company, as the premise liability defendant in this
action. (See Dupont’s Resp. (DE # 261) at 2.) This report does not offer opinion on matters which relate to any of
plaintiff’s motions. (Id.) As such, the court will not address this report.
5
Plaintiff moves to exclude these two opinions as to “any defense expert” offering them. (Pl.’s Mem. Supp. (DE #
213) at 1.) Then in her briefing, plaintiff provides specific examples of the proposed expert testimony that she
contends amounts to these opinions. The court will only evaluate the specific opinions plaintiff contests in her
briefing and will not go beyond the scope of the proffered testimony on a fishing expedition.  
4

27

(DE # 213) at 1-2.) Plaintiff seeks to limit the first opinion on the ground that there is no reliable
scientific basis for the opinion that there is a minimum threshold for chrysotile asbestos to induce
mesothelioma. (Id. at 4.) Plaintiff seeks to limit the second opinion on the ground that it is
inconsistent with, as plaintiff argues, the widely accepted opinion in the scientific community
that “asbestos is asbestos” and there is no safe level or threshold of acceptable exposure to any
type of asbestos fiber below which mesothelioma will not occur. (Id. at 7.) Plaintiff contends
that the defense experts reject the opinion that “asbestos is asbestos” and instead seek to
introduce “wildly divergent opinions about the threshold for chrysotile asbestos to cause
mesothelioma.” (Id. at 4.) Additionally, plaintiff seeks exclusion under Federal Rule of
Evidence 403, asserting that Henshaw’s testimony will mistakenly lead the jury to conclude that
there is a scientific basis for the opinion that chrysotile asbestos cannot cause mesothelioma
unless it meets a minimum threshold. (Id. at 16.)
In response, defendants6 argue that Henshaw is recognized around the world as an expert
in his field, and the opinions that plaintiff seeks to exclude, specifically regarding the potency of
chrysotile asbestos, have been accepted in federal and state courts around the country as
scientifically reliable. (John Crane’s Resp. Opp’n (DE # 254) at 2.)
It is significant to note that plaintiff seeks to limit Henshaw’s opinions based on one
statement Henshaw made in a past deposition in a different case: “chrysotile alone has not shown
to increase risk of mesothelioma.” (Pl.’s Mem. Supp. (DE # 213) at 4, 6.) “[T]he [c]ourt must
base its opinion on the facts and testimony presented in this case, rather than on the testimony of
experts in other cases.” Yates II, 113 F. Supp. 3d at 847 (citing Krik, 76 F. Supp. 3d at 753).

6

Defendants Armstrong International, Flowserve, Powell, and John Crane, adopt two responses in opposition to
plaintiff’s motion. (See DE ## 254, 262, 263, 267, 271, 276.)

28

Plaintiff does not point to a single opinion, report, or any other material of Henshaw’s in this
case that espouses this view, including his 20 June 2018 deposition. (John Crane’s Resp. Opp’n
(DE # 254-3) at 2.) That he may have provided the subject opinions in another case does not
mean he will necessarily testify similarly in this case.
Second, plaintiff moves to exclude Henshaw’s testimony on the ground that he is not
asbestos expert, but rather an expert in asbestos litigation. (Pl.’s Mem. Supp. (DE # 212) at 2.)
Plaintiff contends that the history of asbestos litigation consulting is biased: “Cardno ChemRisk
and its scientists have a history of collaborating with defense attorneys to develop articles that
appear on their face to be scientific, but are actually litigation products.” (Id.) According to
plaintiff, Cardno ChemRisk provides biased scientific research. (Id. at 9, 11-12.) Plaintiff
argues that because Henshaw’s research was funded by defendant John Crane, and in part by
Cardno ChemRisk, his opinion is unreliable. (Id. at 9.) Outside of Henshaw’s purported
involvement with Cardno ChemRisk, plaintiff relies on the fact that Henshaw did not study
asbestos in either undergraduate or graduate school. (Id. at 21-22.) Additionally, plaintiff argues
Henshaw’s testimony should be excluded under Federal Rule of Evidence 403 because of the
risk of misleading the jury. (Id. at 24-25.)
In response, Flowserve contends Henshaw is qualified to render expert opinion in this
case based on his training and experience. (Flowserve’s Resp. Opp’n (DE # 252) at 2.) Further,
Flowserve argues that any potential bias of Henshaw is not a proper basis to exclude his
testimony under Daubert, but rather goes to his credibility. (Id. at 7-8.) Flowserve argues
plaintiff fails to object to Henshaw’s specific methodology or opinions in this matter. (Id. at 9.)
Defendant John Crane also filed a response in opposition, reiterating much of Flowserve’s
arguments.
29

Henshaw is qualified as an expert in this case. Despite the fact that some of Henshaw’s
publications are from his experience working as a litigation consultant, Henshaw has significant
experience in the environmental health field. See Carroll v. John Crane, Inc., No. 15-cv-373,
2017 U.S. Dist. LEXIS 105556, *19 (W.D. Wis. July 7, 2017) (unpublished) (where the court
found “Henshaw [] qualified to offer expert opinion testimony regarding Mr. Carroll’s exposure
to asbestos in this case, having gained sufficient relevant experience over the course of his
career[.]”). The court agrees with defendant that any bias he may have can be explored on crossexamination. Plaintiff’s motion will be denied.
5.

Madl

Madl is a toxicologist who works at Cardno ChemRisk as its Senior Principal Health
Scientist. (Madl Report (DE # 217-9) at 3.) Madl graduated from the University of California,
Davis with a Ph.D. in Pharmacology and Toxicology in 2010. (Id.) As part of her career, Madl
has “published over 75 abstracts, book chapters, and peer-reviewed papers on various
occupational and environmental exposure, toxicology, and risk-related topics” and published 13
asbestos-related publications. (Id. at 2-4.) Madl seeks to offer expert opinion on asbestos
causation, including her study of workers replacing asbestos-containing gaskets and packing
within valves, as well as others’ studies of workers involving gaskets and packing materials with
asbestos. (Id. at 14.) John Crane is the sole defendant who seeks to offer Madl’s expert
testimony. (See John Crane’s Rep. (DE # 258) at 1; Dupont’s Resp. (DE # 261) at 1-2;
Flowserve’s Sur Resp. (DE # 265) at 1; Flowserve’s Resp. (DE # 252) at 1.)
Similar to Henshaw, plaintiff moves to exclude testimony of Madl on the ground that she
is not an asbestos expert, but an expert in asbestos litigation. (Pl.’s Mem. Supp. (DE # 212) at
2). Plaintiff points to John Crane’s funding of research and/or manuscripts for 5 of Madl’s 13
30

peer-reviewed publications. (Id. at 10.) Plaintiff contends Madl’s background in asbestos did
not begin until after she started working for Cardno ChemRisk, and she does not have experience
from her Master’s program studying asbestos. (Id. at 21.)
In response, John Crane raises much of the same argument it made as to Henshaw. (John
Crane’s Resp. (DE # 258) at 3-6.) Specifically, as to Madl, John Crane contends her experience
in the field of toxicology qualifies her as an expert, and she has performed peer reviewed
research on the health effects of exposure to asbestos. (Id. at 9.)
Madl’s significant toxicology experience is reliable to qualify her as an expert in this
case. Of significance, the court finds that despite the fact that some of Madl’s publications were
financed by John Crane, her articles have been subsequently peer reviewed in the scientific
community. See Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317–18 (9th Cir. 1995)
(“That the research is accepted for publication in a reputable scientific journal after being
subjected to the usual rigors of peer review is a significant indication that it is taken seriously by
other scientists, i.e., that it meets at least the minimal criteria of good science.”). The other
issues plaintiff raises with Madl’s testimony can be addressed on cross-examination. Plaintiff’s
motion will be denied.
6.

Roggli

Roggli is a Professor of Pathology at Duke University. (Roggli’s Report (DE # 254-4 at
2.) He intends to offer opinion as to the causation of Gore’s mesothelioma, through a causation
report, and as to Roggli’s diagnosis, from his diagnostic report. (Id. at 4.) He intends to offer the
opinion that Gore’s exposure to chrysotile asbestos in gaskets or packing materials did not cause
or contribute to the development of Gore’s mesothelioma. (Id.)

31

Similar to Henshaw, plaintiff moves to limit Roggli’s expert opinions to the extent he
claims “(1) chrysotile asbestos does not cause mesothelioma and/or there is a threshold or
minimum exposure to chrysotile asbestos required to induce mesothelioma in humans, and (2)
exposure to asbestos- containing gaskets does not cause mesothelioma and/or did not cause []
Gore’s mesothelioma.” (Pl.’s Mem. Supp. (DE # 213) at 1-2.) Roggli testified,
Q:

As a hypothetical, if you assume that Mr. Gore was performing the same type of
gasket and packing work that he described in his deposition or that has been
described through the attorneys that have retained you in giving and providing
you case information, if those gaskets and packing contained crocidolite, would
that change the opinions that you've written in your report about the chrysotile
and gaskets and packing not being capable of causing mesothelioma? . . .

A:

Yeah, I would say it’s certainly possible. The basis for that is that with chrysotile,
it requires 7 to 10 fiber cc years. At the level of exposure you get from gaskets
and packing it would take exposures more than 70 to 100 years. For crocidolite
containing gaskets, it would take considerable less time, and so it's possible that
one might accumulate sufficient exposure from crocidolite gaskets and/or packing
to be contributory. So its possible.

(Roggli Dep. (DE # 254-2) at 5.) Roggli further testified:
Q:

Are there studies that they cite to regarding gasket removal in which your opinion
would be that if those gaskets contained crocidolite they would place an
individual at an increased risk? . . .

A:

Yeah, it would depend upon the duration of exposure, the levels of exposure. My
understanding from industrial hygienist studies are from use of gaskets and
packing are low, below the current PEL. So depending upon what the precise
level is that you're assuming the exposures were, that would determine how many
years it would take before you could reach a level of crocidolite that would
significantly increase the risk of mesothelioma.

Q:

Okay. And you testified in the past that that level for exposure to crocidolite, it
would have to surpass .015 fiber cc years in order for it to be capable of doubling
the risk of mesothelioma. Is that right?

A:

That's correct.

Q:

Okay. With respect to amosite asbestos, what's the number again? Is it .08?

A:

.075.

Q:

.075. Sorry.
32

And your chrysotile number, has that changed at all? What's that?
A:

No. It's the same, 7 to 10 fiber cc years.

(Id. at 4 (emphasis added)).
Here, Roggli opines about the increased risk of asbestos exposure in the gasket as it
relates to crocidolite or chrysotile, in order to quantify how many years it will take before it
reaches a level that would significantly increase the risk of mesothelioma. That opinion is not
the same as what plaintiff challenges. See Yates II, 113 F. Supp. 3d at 848 (finding an expert’s
opinion on risk as not positing causation). Thus, plaintiff’s motion will be denied.
III.

CONCLUSION

For the foregoing reasons, defendant Powell’s motion for summary judgment is DENIED
(DE # 206); defendant Flowserve’s motion for summary judgment is DENIED IN PART and
ALLOWED IN PART (DE # 229); and defendant John Crane’s motion for summary judgment is
DENIED (DE # 236). Plaintiff may not recover any damages attributable to Valtek products or
any punitive damages of Flowserve. Additionally, plaintiff’s motion in limine to exclude
unreliable causation opinions of defendant’s experts is DENIED (DE # 205); plaintiff’s motion
in limine to exclude testimony of defense experts Henshaw and Madl is DENIED (DE # 211);
defendant Dupont Company’s motion in limine to exclude opinion testimony of Holstein is
DENIED (DE # 216); and defendant John Crane’s motion in limine to exclude expert testimony
premised on the “every exposure counts” theory of causation is DENIED (DE # 248). The Clerk

33

is DIRECTED to schedule a final pretrial conference no earlier than 45 days from the filing of
this order.
This 21 September 2018.

__________________________________ 

W. Earl Britt
Senior U.S. District Judge

34