Anderson et al v. Ford Motor Company et al
MEMORANDUM DECISION granting in part and denying in part 289 Motion for Leave to File an additional export report. Signed by Magistrate Judge Dustin B. Pead on 7/1/13. (ss)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
Case No. 2:06-cv-00741
FORD MOTOR COMPANY, et. al.,
United States District Court Chief Judge
Magistrate Judge Dustin Pead
Currently pending before this Court is Plaintiff Arva Anderson’s (“Plaintiff”)1 “Motion
For Leave To File Additional Expert Report” (Docket Number 289).2 Defendant Crane Co.
objects to Plaintiff’s motion (Docket Number 294), and Defendants Sepco Corporation and York
International Corporation have been granted leave to join Crane’s objection (collectively
“Defendants”) (Docket Number 309).
The Court has carefully reviewed the motion and memoranda submitted by the parties.
Pursuant to civil rule 7-1(f) of the United States District Court for the District of Utah Rules of
Practice, the Court concludes that oral argument would not materially assist in the determination
of this matter. See DUCivR 7-1(f).
This action was originally filed by Mr. Joseph Alexander Anderson Jr. After Mr.
Anderson’s death on June 7, 2008, his wife and executor of his estate, Arva Anderson, was
substituted as Plaintiff.
This matter was referred to Magistrate Judge Dustin Pead by Chief District Judge Ted
Stewart pursuant to 28 U.S.C. § 636(b)(1)(A) (Docket Number 290).
Motion For Leave
On August 5, 2010, Plaintiff filed her Rule 26 Disclosures of Expert and Fact Witnesses
which included the expert reports of Dr. Steven Dikman (Dr. Dikman) and Dr. Barry Horn (Dr.
Horn) (Docket Numbers 294-1, 294-2). Plaintiff hired Dr. Dikman and Dr. Horn to testify
regarding the cause of Mr. Anderson’s mesothelioma.
On November 8, 2012, Dr. Dikman passed away (Docket Number 280). Due to Dr.
Dikman’s death, Plaintiff filed her currently pending motion seeking leave of the Court to obtain
a new expert to testify regarding medical causation (Docket Number 289). Absent leave to
obtain an additional expert, Plaintiff asserts that she will be “greatly prejudiced.” Id. Defendants
counter that given the testimony of Dr. Horne, a replacement expert is unnecessary and that
allowing Plaintiff to add another expert at this juncture is unfair to Defendants. (Docket Number
Judge Stewart’s Ruling
On June 24, 2013, District Court Judge Ted Stewart issued a Memorandum Decision and
Order granting Defendants’ “Motion To Exclude The Proposed Specific Causation Testimony
From Plaintiff’s Experts” (Docket Number 323). At issue was the question of whether Plaintiff’s
experts, Dr. Dikman and Dr. Horne, should be allowed to offer “every exposure” testimony.
Under that theory, “every exposure” to asbestos is a factual cause in the development of an
individual’s mesothelioma. Id. Defendants’ objected to the testimony arguing that the theory is
not supported by “any scientifically accepted approach to determining causation in a toxic
exposure case.” (Docket Number 280).
In his decision granting Defendants’ motion, Judge Stewart limited the substance of the
experts’ proposed testimony and concluded that the “every exposure theory of causation does not
meet the standards set by Rule 702 and Daubert and must be excluded” (Document Number
Ruling & Order
In light of Judge Stewart’s recent decision and upon consideration of the parties’
arguments, the Court hereby grants in part Plaintiff’s motion for leave to file an additional
export report (Docket Number 289). Plaintiff’s motion is denied in part to the extent that
Plaintiff’s new expert intends to provide testimony regarding the every exposure theory of
causation. While Plaintiff indicates that the testimony of her new expert “would be in all
respects consistent with the report of Dr. Dikman” (Docket Number 289) the Court cautions that
every exposure theory testimony shall not be allowed and that any testimony provided must
comport with Judge Stewart’s Ruling.
1. Plaintiff shall have forty-five (45) days from the date of this Order to serve an
additional expert report upon Defendants.
2. If necessary, Defendants shall have forty-five (45) days from receipt of Plaintiff’s
additional medical expert report within which to serve a rebuttal expert report.
DATED this 1st day of July, 2013.
U.S. Federal Magistrate Judge
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