Anderson et al v. Ford Motor Company et al

Filing 323

MEMORANDUM DECISION AND ORDER granting #270 Motion to Exclude the Proposed Specific Causation Testimony From Plaintiff's Experts. Signed by Judge Ted Stewart on 6/24/13. (ss)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ARVA ANDERSON,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION TO EXCLUDE THE
PROPOSED SPECIFIC CAUSATION
TESTIMONY FROM PLAINTFF’S
EXPERTS

vs.

FORD MOTOR COMPANY, et al.,

Case No. 2:06-CV-741 TS

Defendants.

This matter is before the Court on Defendant Crane Co.’s Renewed Motion to Exclude
the Proposed Specific Causation Testimony from Plaintiff’s Experts. Defendants York
International Corporation, Honeywell, Inc., Goulds Pumps, Flowserve Corporation, and Sepco
Corporation (collectively “Defendants”) have all joined in Crane Co.’s Renewed Motion. For the
reasons discussed below, the Court will grant Defendants’ Motion.

1

I. BACKGROUND
This matter was initially filed in state court by Joseph Alexander Anderson, Jr., and was
removed to this Court on September 1, 2006. Plaintiff’s complaint alleged that Mr. Anderson
had been diagnosed with asbestos-caused Mesothelioma. Mr. Anderson died of Mesothelioma
on June 7, 2008, and his wife and the executor of his estate, Arva Anderson, was substituted as
Plaintiff. On October 20, 2006, the United States of America Judicial Panel on Multidistrict
Litigation issued Conditional Transfer Order 269,1 which transferred Plaintiff’s case to the
United States District Court for the Eastern District of Pennsylvania (the “Pennsylvania Court”).
On September 26, 2012, without giving any reasoning for its determination, the
Pennsylvania Court issued an order denying Defendant Crane Co.’s Motion to Exclude as moot.2
On the same day, the Pennsylvania Court issued a Suggestion of Remand, suggesting that the
case be remanded to this Court because all discovery had been completed and the case was ready
for trial.3 On October 12, 2012, a Clerk’s Order of Conditional Remand was signed, remanding
the case back to this Court for trial and severing all claims for punitive or exemplary damages.4
Soon thereafter, on December 3, 2012, Defendant Crane Co. filed its Renewed Motion to
Exclude the Proposed Specific Causation Testimony from Plaintiff’s Experts.

1

See Docket No. 143.

2

Docket No. 270-8.

3

Docket No. 254.

4

Id.
2

Plaintiff hired two experts to testify regarding the cause of Mr. Anderson’s
Mesothelioma. Drs. Barry Horn and Steven Dikman have each submitted expert reports and
have been deposed by Defendants in regard to those reports. Before making their reports, both
experts reviewed Mr. Anderson’s medical records and work history as supplied by Plaintiff’s
counsel. However, neither expert personally spoke with or examined Mr. Anderson.
Dr. Dikman passed away on November 8, 2012, and Defendants have withdrawn their
arguments as to his personal testimony. However, Defendants have not withdrawn their
arguments as to the substance of Dr. Dikman’s proposed testimony, and continue to seek an order
that no expert should be allowed to offer “every exposure” testimony or give specific causation
testimony regarding any of Defendants’ products. As the substance of Dr. Dikman’s report is at
issue in the present Motion, it will be considered despite his death.
A.

DR. HORN’S REPORT
Dr. Horn’s report consists of a detailed summary of the medical information provided to

him, a recitation of Mr. Anderson’s work history, and a brief opinion. Dr. Horn opines that “[a]ll
of Mr. Anderson’s asbestos exposure should be considered a contributing factor in the
development of his malignancy. In summary, Mr. Anderson has been diagnosed as having
malignant mesothelioma caused by prior occupational and paraoccupational exposure to
asbestos.”5 He further opines that “[t]here is only one known cause of malignant mesothelioma
in man, and that [is] prior asbestos exposure or exposure to a similar substance called zeolite. . . .
[M]any studies have clearly demonstrated that workers exposed to asbestos are at risk for this

5

Docket No. 270-1 Ex. A, at 12.
3

otherwise rare malignancy.”6 Dr. Horn later submitted a supplemental report in which he
declares that “[t]he mesothelioma was caused by prior exposure to asbestos as outlined in my
prior report.”7
When questioned in his deposition about the basis for his opinions, Dr. Horn affirmed
that he “didn’t consult anything specific for this case.”8 Furthermore, when asked specifically if
he had any opinions related to Defendant Crane Co.’s products, Dr. Horn testified “[n]o, I have
no specific opinions. I have no information regarding this man’s exposure to Crane Co.
Products.”9 Neither Dr. Horn’s report nor deposition contains any information regarding Mr.
Anderson’s exposure to the products of any specific Defendant.
When questioned about whether he needed to know the dose of asbestos dust Mr.
Anderson was exposed to in formulating his opinion, Dr. Horn testified “No. If the exposure is
above background, then it increased his risk. Now, if there are some exposures that are much
higher than other exposures, then the higher exposures would contribute a greater risk than lower
exposures. But any exposure above background would increase his risk.”10 He further explained
that

6

Id. at 10.

7

Docket No. 285-7 Ex. D, at 4.

8

Docket No. 270-2 Ex. 2, at 19.

9

Docket No. 270-3, at 87.

10

Docket No. 270-2 Ex. 2, at 27.
4

[a]ll chemical carcinogens manifest a dose-dependent relationship. There’s, I
don’t believe there’s any dispute anywhere in the literature regarding that issue.
The more of a chemical carcinogen you are exposed to, the greater your risk for
the development of cancer. This is clearly also true for asbestos; that is, the more
asbestos you inhale and retain in your lungs, the greater your risk for developing
an asbestos-related disease, and that includes mesothelioma.11
B.

DR. DIKMAN’S REPORT
Dr. Dikman’s report consists of a brief summary of Mr. Anderson’s work and medical

history followed by a one paragraph opinion. Dr. Dikman opines as follows:
Asbestos exposure is well documented to cause malignant mesothelioma. The
finding of hyalinized pleural plaquing in the surgical tissue specimen from Mr.
Anderson indicates asbestos related pleural disease and confirms that his asbestos
exposure was substantial. The radiographic and clinical findings, including the
intraoperative appearance, and the microscopic and immunopathologic studies
established the diagnosis of malignant mesothelioma. It is my opinion, with a
reasonable degree of medical certainty, that Mr. Anderson’s malignant pleural
mesothelioma was caused by his asbestos exposure.12
When asked whether his opinion on causation required a consideration of the frequency
of exposures, Dr. Dikman stated that “[i]n some cases, yes, generally I would say yes but in
specifically in Mr. Anderson we have high hyalinized pleural plaquing which documents that he
had substantial exposure in the past which would cover both frequency and duration.”13 Dr.
Dikman later clarified that he didn’t have specific information on Mr. Anderson’s exposure to

11

Id. at 17.

12

Docket No. 285-7 Ex. B, at 2.

13

Docket No. 270-2 Ex. 1, at 13-14.
5

asbestos, stating that he didn’t “have specific information as to those types of frequency,
duration, and things of that sort.”14
Additionally, Dr. Dikman testified as follows:
Q. Did you think that every exposure contributes to the development of this
disease?
A. I would think there is no way of separating every specific exposure, but I
would say that, yes, that the aggregate of the exposures did contribute to his
disease.
Q. Let me ask you: Do you believe that every exposure contributes to his disease?
A. I would say, yes, and then I have no way of separating one exposure from the
other. We know this individual, as many individuals, has had substantial exposure
to asbestos and they have an asbestos-caused mesothelioma.
Q. Do you believe that every exposure to asbestos contributes equally to the
development of the disease?
A. I don’t know.
MR. KIELY: Objection.
Q. Do you believe that the frequency of exposures affects its contribution to the
development of disease?
A. We don’t know. We don’t know the specific threshold of what is needed to
develop mesothelioma. There is no established threshold. And the types and
amounts of exposure and duration and frequency is very variable, and it’s at all
different levels. So there is really no specific duration or amount that’s really
known to be necessary to cause mesothelioma.15
Finally, Dr. Dikman testified that the general population is exposed to asbestos in the
ambient air.16 Dr. Dikman clarified that “the measurements in the air samples in the general
population, and air samples have been used to see the incidence in a background population from

14

Id. at 18-19.

15

Id. at 46-48.

16

Id. at 126.
6

nonexposed individuals, and this has never been shown to have a significant increase in the risk
for mesothelioma in these background populations.”17
II. RULE 702 AND DAUBERT
Defendants do not argue that Plaintiff’s experts are not qualified to testify as experts in
this matter. Instead, Defendants seek to exclude any specific causation testimony that the
asbestos which caused Mr. Anderson’s disease came from their products. Specifically,
Defendants argue that the experts should be precluded from offering testimony that “every
exposure” to asbestos is a factual cause of the development of mesothelioma. Defendants argue
that such testimony should be excluded because (1) it is not based on sound scientific principles
and should be excluded under Daubert and Fed. R. Evid. 702; and (2) jurisdictions applying a
substantial factor causation test should not permit this type of opinion evidence. As the Court
finds that the proposed testimony does not meet the requirements of Rule 702 and Daubert, there
is no need to consider whether the testimony is appropriate under the substantial factor causation
test.
Fed. R. Evid. 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.

17

Id. at 128.
7

In Daubert v. Merrell Dow Pharmaceuticals Inc.18 and Kumho Tire Co., Ltd. v.
Carmichael,19 the Supreme Court interpreted the requirements of Rule 702. “Daubert requires a
trial judge to ‘ensure that any and all scientific testimony or evidence admitted is not only
relevant, but reliable.’”20 “In applying Rule 702, the trial court has the responsibility of acting as
a gatekeeper.”21
“Scientific knowledge . . . ‘implies a grounding in the methods and procedures of science’
which must be based on actual knowledge and not ‘subjective belief or unsupported
speculation.’”22 “In other words, ‘an inference or assertion must be derived by the scientific
method . . . [and] must be supported by . . . good grounds, based on what is known.’”23 “‘Under
the regime of Daubert . . . a district judge asked to admit scientific evidence must determine
whether the evidence is genuinely scientific, as distinct from being unscientific speculation
offered by a genuine scientist.’”24

18

509 U.S. 579 (1993).

19

526 U.S. 137 (1999).

20

Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163 (10th Cir. 2000)
(quoting Daubert, 509 U.S. at 589).
21

In re Breast Implant Litig., 11 F. Supp. 2d 1217, 1222 (D. Colo. 1998).

22

Mitchell v. Gencorp Inc., 165 F.3d 778, 780 (10th Cir. 1999) (quoting Daubert, 509
U.S. at 590).
23

Id. (quoting Daubert, 509 U.S. at 590).

24

Id. at 783 (quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996)).
8

“The Supreme Court has provided some guidance for the task of determining scientific
validity.”25 “This inquiry is ‘a flexible one,’ not governed by a ‘definitive checklist or test.’”26
Some factors to consider are whether the expert’s theory or technique: (1) can be (and has been)
tested; (2) has been subjected to peer review and publication; (3) has a known or potential rate of
error with standards controlling the technique’s operation; and (4) enjoys widespread acceptance
in the relevant scientific community.27
III. DISCUSSION
Plaintiff’s experts admit that they do not have any specific information regarding Mr.
Anderson’s exposure to any of Defendants’ products.28 They do not appear to think such
information is necessary, as their testimony that every exposure Mr. Anderson had to an asbestos
fiber contributed to the causation of his disease would imply specific causation regardless of the
dose of the exposure or the type of fiber to which Mr. Anderson was exposed. Under this
analysis, all Plaintiff must do at trial is show that Mr. Anderson was exposed to some minimal
amount of asbestos from the product of a Defendant at some point in his life, and that Defendant
could be found liable for his mesothelioma. This would be true regardless of whether or not Mr.
Anderson was also exposed to significant amounts of highly carcinogenic fibers from one or
more of the other Defendants.

25

In re Breast Implant Litig., 11 F. Supp. 2d at 1223.

26

Atl. Richfield, 226 F.3d 1163 (quoting Daubert, 509 U.S. at 593).

27

Id.

28

Docket No. 270-3, at 87; Docket No. 270-2 Ex. 1, at 18-19.
9

Defendants argue that the testimony of Plaintiff’s experts is conjecture that is not based
on sound scientific principles or evidence. Therefore, Defendants urge the Court to exercise its
gatekeeping powers to exclude this evidence under Rule 702 and Daubert. The chief dispute is
whether the testimony is based on sufficient facts or data, and whether the testimony is the
product of reliable principles and methods.
Recently, in Smith v. Ford Motor Company, Judge Dee Benson of this Court thoroughly
considered whether Rule 702 and Daubert permit expert testimony that “every exposure” to
asbestos is a contributing cause to a person’s mesothelioma.29 The Court finds Judge Benson’s
opinion to be persuasive and well-reasoned.30 In Smith, the plaintiff’s expert sought to offer
“every exposure” testimony to show that Mr. Smith’s mesothelioma was caused by his
cumulative exposure to asbestos, with each exposure playing a contributing role, including any
exposure he may have had when he changed automobile break pads on several occasions.31
However, the expert did not have any underlying data on the quantity of fibers found in brakes
necessary to cause cancer in a human being.32

29

2013 WL 214378 (D. Utah Jan. 18, 2013).

30

This Court had previously considered whether to allow testimony similar to the
testimony proposed here when presented with the question in the context of a motion in limine in
Larson v. Bondex International, Inc. 2011 U.S. Dist. LEXIS 79830 (D. Utah July 21, 2011).
Without the aid of the extensive briefing provided by the parties to the present case, the Court
allowed the testimony. Id. at *4.
31

Id. at *1.

32

Id. at *3.
10

After thoroughly considering the arguments before it, the Court found the expert opinion
to be, “as a matter of law, unsupported by sufficient or reliable scientific research, data,
investigations or studies, and is inadmissible under Rule 702.”33 The Court found that “the every
exposure theory as offered as a basis for legal liability is inadmissible speculation that is devoid
of responsible scientific support.”34
A.

UNDERLYING FACTS AND DATA
Plaintiff’s experts are unable to point to any studies showing that “any exposure” to

asbestos above the background level of asbestos in the ambient air is causal of mesothelioma.
Instead, Plaintiff’s experts base their opinion on the fact that scientists have been unable to
determine a safe level for exposure to asbestos. Such studies are difficult to perform as
mesothelioma often develops as long as between ten and forty years after exposure to asbestos,35
and scientists have not yet found a way to determine which exposure or fiber(s) caused the
mesothelioma. As Dr. Dikman testified, “We don’t know. We don’t know the specific threshold
of what is needed to develop mesothelioma. There is no established threshold. . . . So there is
really no specific duration or amount that’s really known to be necessary to cause
mesothelioma.”36

33

Id. at *2.

34

Id.

35

Docket No. 285-1, at 25.

36

Docket No. 270-2 Ex. 1, at 48.
11

As noted earlier, not only do Plaintiff’s experts lack data on the level of exposure to
asbestos necessary to cause mesothelioma, they have no information on Mr. Anderson’s exposure
to Defendants’ products, or even the type of asbestos fibers that Defendants’ products may
contain. All of the experts’ data comes from medical reports which demonstrate that, at some
point, Mr. Anderson was exposed to asbestos and that the “asbestos exposure was substantial.”37
The experts have no information on whether that substantial exposure had any relation to the
remaining Defendants before the Court.
As this Court recently stated in Smith, “Rule 702 and Daubert recognize above all else
that to be useful to a jury an expert’s opinion must be based on sufficient facts and data. The
every exposure theory is based on the opposite: a lack of facts and data.”38 Plaintiff’s experts do
not base their opinions on scientific evidence that every exposure to asbestos causes
mesothelioma. Instead, their testimony is based on their lack of information sufficient to show
the level of exposure which does not create a risk of mesothelioma. This is not reliable enough
evidence for the Court to allow it in under the standards of Daubert and Rule 702. “Just because
we cannot rule anything out does not mean we can rule everything in.”39

37

Docket No. 285-7 Ex. B, at 2.

38

2013 WL 214378, at *2.

39

Id. at *3.
12

B.

PRINCIPLES AND METHODS
“It is well established that a plaintiff in a toxic tort case must prove that he or she was

exposed to and injured by a harmful substance manufactured by the defendant.”40 Normally, a
plaintiff will rely on its expert to “demonstrate ‘the levels of exposure that are hazardous to
human beings generally as well as the plaintiff’s actual level of exposure to the defendant’s toxic
substance before he or she may recover.’”41 Here, however, Plaintiff’s experts simply assert that
any level of exposure is hazardous to human beings and forego any examination of Mr.
Anderson’s actual level of exposure.
In support of his proposed testimony that every exposure to asbestos is casual of
mesothelioma, Dr. Horn states that mesothelioma is dose-responsive to asbestos exposure.42 In
addition, Dr. Dikman testified that although there is some background level of asbestos to which
the general population is exposed, this exposure has not been shown to pose a significant risk of
mesothelioma.43 The experts simply 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.
Considering the Daubert factors for examining a scientific theory, the theory proposed by
Plaintiff’s experts is troubling. Due to the significant lag between exposure to asbestos and a

40

Mitchell, 165 F.3d at 781 (citing Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106
(8th Cir. 1996); Wintz By & Through Wintz v. Northrop Corp., 110 F.3d 508, 515 (7th Cir.
1997); Allen v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996)).
41

Id. (quoting Wright, 91 F.3d at 1106).

42

Docket No. 270-2 Ex. 2, at 17.

43

Id. Ex. 1, at 128.
13

diagnosis of mesothelioma, the theory cannot be easily tested. Plaintiff’s experts testified that
they have no way of knowing which fibers or which exposure caused the mesothelioma.
Similarly, there is no known error rate for this theory. Although Plaintiff has pointed to instances
in which people with very little known exposure to asbestos contracted mesothelioma, it is not
known if the odds of people with so little exposure contracting mesothelioma is one out of a
million or one out of a hundred.
Plaintiff has supplemented the record with numerous scholarly articles and scientific
studies in support of the claim that asbestos causes mesothelioma and that there is no known safe
exposure to asbestos. However, Plaintiff’s experts have pointed to no studies showing that the
type of exposure Mr. Anderson had to Defendants’ products is likely to cause mesothelioma.
Viewed in its most favorable light, the literature shows that any exposure to asbestos could cause
mesothelioma, but no one knows how likely that is.
Plaintiff has also supplied the Court with the reports and testimony of a core group of
experts in similar cases where the experts testified that every exposure to asbestos caused a
person’s mesothelioma. However, the Court must base its opinion on the facts and testimony
presented in this case, rather than on the testimony of experts in other cases. Although the
testimony of these experts does indicate that the theory has some acceptance in the scientific
community, the Court notes that a growing number of courts have determined that the theory is
not proper under Daubert and Rule 702, expressing the opinion that the “‘any exposure theory is,

14

at most, scientifically-grounded speculation: an untested and potentially untestable
hypothesis.’”44
For the reasons stated above, the Court finds that the every exposure theory of causation
does not meet the standards set by Rule 702 and Daubert and must be excluded. Therefore,
Defendants’ Motion will be granted.
IV. CONCLUSION
It is therefore
ORDERED that Defendants’ Renewed Motion to Exclude the Proposed Specific
Causation Testimony from Plaintiff’s Experts (Docket No. 270) is GRANTED.
DATED June 24, 2013.
BY THE COURT:

___________________________________
TED STEWART
United States District Judge

44

Smith, 2013 WL 214378, at *5 (quoting Butler v. Union Carbide Corp., 712 S.E.2d 537,
552 (Ga. Ct. App. 2011)).
15