Anderson et al v. Ford Motor Company et al

Filing 374

MEMORANDUM DECISION AND ORDER denying #348 Motion to Exclude Specific Causation Testimony. Signed by Judge Ted Stewart on 2/28/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ARVA ANDERSON,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
MOTION TO EXCLUDE

Plaintiff,
v.
FORD MOTOR COMPANY, et al.,

Case No. 2:06-CV-741 TS
Defendants.
District Judge Ted Stewart

This matter is before the Court on Defendant Crane Co.’s Motion to Exclude Specific
Causation Testimony from Plaintiff’s Medical Causation Witness Dr. Jerrold Abraham.1
Defendants Sepco Corporation, Flowsere Corporation, York International Corporation,
Honeywell International Inc., and Gould Pumps Inc. have joined in Crane Co.’s Motion.2 For
the reasons discussed below, the Court will deny the Motion.
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, which transferred Plaintiff’s case to the United

1

Docket No. 348.

2

Docket Nos. 350, 354, 357, 360, 368.
1

States District Court for the Eastern District of Pennsylvania. 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.
After remand, Defendant Crane Co., joined by the other Defendants, filed a Renewed
Motion to Exclude the Proposed Specific Causation Testimony from Plaintiff’s Experts. On
June 24, 2013, the Court granted Defendant Crane Co.’s Renewed Motion (the “June 24, 2013
Order”). In the June 24, 2013 Order, the Court excluded testimony from Plaintiff’s experts—
Drs. Horn and Dikman—who intended to testify “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.”3
The Court rejected such “every exposure” testimony, finding that it failed to meet the
requirements of Federal Rule of Civil Procedure 702 and Daubert v. Merrell Dow
Pharmaceuticals Inc.4 The Court noted that “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.”5 The Court concluded that “[t]he 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.”6

3

Docket No. 323, at 9.

4

509 U.S. 579 (1993).

5

Docket No. 323, at 12.

6

Id. at 13.

2

After the Court’s June 24, 2013 Order, Plaintiff was granted leave to file an additional
expert report.7 However, Plaintiff was cautioned that “every exposure theory testimony” would
not be permitted.8
Plaintiff retained Jerrold L. Abraham, M.D., as an expert. Dr. Abraham is a Professor of
Pathology and Director of Environmental and Occupational Pathology at the State University of
New York Upstate Medical University.
Dr. Abraham provided his initial report on July 23, 2013.9 In that report, Dr. Abraham
stated:
Asbestos exposure is well known to be the cause of nearly all malignant
mesotheliomas. Mr. Anderson had a history of asbestos exposure and developed
a malignant mesothelioma. Based on this information I can conclude to a
reasonable degree of medical certainty that Mr. Anderson’s asbestos exposure
was the cause of his asbestos-related pleural plaques, his asbestosis, and of his
malignant mesothelioma and death. Asbestos exposure is also the cause of
asbestosis, by definition.10
At the request of Plaintiff’s counsel, Dr. Abraham provided an extended report on August
2, 2013.11 In his extended report, Dr. Abraham considered Plaintiff’s testimony concerning
Plaintiff’s work with specific products.12 Dr. Abraham concluded that, if these products

7

Docket No. 326, at 3.

8

Id.

9

Docket No. 348 Ex. A.

10

Id.

11

Docket No. 348 Ex. C.

12

Dr. Abraham specifically discussed Chesterton packing, Crane valves and pumps, Goulds
pumps, Durco pumps and valves, Sepco packing, and York compressors. Id. at 2–3.

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contained asbestos, the inhalation of dust from these materials by Plaintiff “was a substantial
factor in causing [Plaintiff’s] mesothelioma and ultimately his death.”13
Dr. Abraham concluded his extended report as follows:
It is my opinion, to a reasonable degree of medical certainty, that Mr.
Anderson contracted malignant mesothelioma as a result of his exposure to
asbestos; and that his asbestos-caused mesothelioma was the primary cause of his
death. His asbestos exposure was also, by definition, the cause of his asbestosis
and of his asbestos-related pleural plaques.
I am familiar with asbestos exposures encountered by plumbers and
pipefitters during the removal and replacement of gaskets and packing materials
and, in my opinion, the doses are substantial and are the type to cause
mesothelioma. I have personally reviewed many cases of pipefitters who have
been diagnosed with mesothelioma as a result of their exposures to asbestoscontaining packing and gaskets such as the ones described by Mr. Anderson. I am
also aware that it was typical during the years of Mr. Anderson’s employment for
industrial gaskets and packing to contain asbestos fibers. Removal and
replacement of gasket and packing materials like the ones described by Mr.
Anderson are known to emit respirable asbestos fibers in the range of 0.2 to 4.2
f/cc during the same installation and removal processes described by Mr.
Anderson. It is also well recognized within the medical community that brief,
low-level occupational exposures to asbestos are sufficient to cause mesothelioma
after an appropriate latency period. Studies and case reports indicate that
exposures resulting in asbestos doses of less than 0.15 f/cc/yr pose a substantially
elevated risk for the development of disease, and that exposures as little as a few
days can cause mesothelioma.
Each of the exposures identified above, individually, increased Mr.
Anderson’s risk for developing asbestos-related disease because the doses he
would likely have incurred from each of them were separately and independently
within the range of doses known to cause mesothelioma. Here, with the benefit of
hindsight, we know that Mr. Anderson did indeed contract mesothelioma as a
result of his asbestos exposure. It is my opinion, to a reasonable degree of
medical certainty, that each individual exposure described above substantially
contributed to the causation of Mr. Anderson’s mesothelioma and his death. It is
also my opinion that each of those exposures was individually substantial based
on the available data, as each was independently capable of causing mesothelioma
by itself.14

13

Id. at 2–3.

14

Id. at 3–4 (footnotes omitted).

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The parties deposed Dr. Abraham on October 15, 2013.15 In his deposition, Dr. Abraham
gave testimony consistent with the “every exposure” theory:
Q. Would you agree that every asbestos exposure above background level was a
substantial factor in the development of Mr. Anderson’s mesothelioma?
A. Yes, if there is no safe threshold, every exposure above background would
have been sufficient in itself to cause the mesothelioma. If he’d only had one
exposure and developed a mesothelioma that would have been sufficient to be the
cause. But when there is multiple exposures then the way that’s usually
approached is by measuring the cumulative exposure, and the cumulative
exposure then becomes the cause.
Q. And you do agree that there is no safe asbestos exposure other than
background?
A. There is no known safe exposure. There may be a safe exposure but nobody
has demonstrated one yet.
Q. And would you agree that all of Mr. Anderson’s asbestos exposure should be
considered a contributing factor in the development of his malignancy?
A. Other than his ambient background, yes.16
Other statements from Dr. Abraham further show his belief in the every exposure
theory.17 However, Dr. Abraham’s testimony was not simply limited to this theory. Dr.
Abraham agreed that in the past he had “offered an opinion that exposures to a defendant’s
product caused the plaintiff’s mesothelioma based solely on a hypothetical that the defendant’s
product contained asbestos or released it into the air and the plaintiff was exposed at above
background levels from that product.”18 However, that was only because he was not provided all

15

Docket No. 348 Ex. B.

16

Id. at 21:3–25.

17

Id. at 22:19–24 (“[T]here is no known safe threshold of exposure for mesothelioma. So then it
follows that any exposure somebody has has the potential to be the only cause of their
mesothelioma and also becomes part of the contributing cause or causes to their
mesothelioma.”).
18

Id. at 23:11–16.

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of the detail of the plaintiff’s exposure. Dr. Abraham testified that “[i]n this case I was given
more detail than I’m usually given.”19
Dr. Abraham admitted that he would be willing to provide a causation opinion “based on
a hypothetical where you assumed that a defendant’s product released asbestos, the plaintiff
breathed it in, and therefore that exposure was a substantial contributing factor in causing the
disease.”20 However, a review of his extended report reveals that Dr. Abraham’s proposed
testimony is based upon more than just a hypothetical. Rather, Dr. Abraham examined Mr.
Anderson’s testimony concerning his work with certain products, which could have released a
certain level of fibers. Based on this testimony, and studies showing that exposures above a
certain level pose a substantially elevated risk for developing mesothelioma, Dr. Abraham was
able to conclude that each of the exposure described by Plaintiff contributed to the causation of
the disease.
II. DISCUSSION
Defendant first argues that the every exposure theory does not comport with Rule 702
and Daubert. For substantially the same reasons stated by the Court previously, the Court
agrees. But this does not end the inquiry.
Defendant next argues that Dr. Abraham believes the every exposure theory and will
testify on the every exposure theory. This argument, however, is an oversimplification of Dr.
Abraham’s extended report and his deposition testimony.

19

Id. at 23:18–19.

20

Id. at 24:21–25.

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Dr. Abraham’s report is based on portions of Mr. Anderson’s deposition. In his
deposition, Mr. Anderson testified about working with specific products. Dr. Abraham relies
upon other scientific evidence that has found that the work Mr. Anderson described releases a
certain level of respirable asbestos fibers. Dr. Abraham further relies on studies showing that
asbestos doses of a certain amount pose a substantially elevated risk for the development of
disease. Based upon this evidence, Dr. Abraham was able to reach the conclusion “that each
individual exposure described [by Mr. Anderson] substantially contributed to the causation of
Mr. Anderson’s mesothelioma and his death. It is also my opinion that each of those exposures
was individually substantial based on the available data, as each was independently capable of
causing mesothelioma by itself.”21 This opinion does not suffer from the same flaws as the
opinions of Drs. Horn and Dikman. Those opinions were deficient because they were premised
on a lack of information, while Dr. Abraham’s opinion is clearly based on Plaintiff’s testimony
in combination with other scientific evidence.
Defendant tries to assert that Dr. Abraham will testify as to the every exposure theory.
However, Plaintiff has specifically stated that Dr. Abraham did not rely on that theory “and will
not be relying on that theory for any testimony he gives at trial.”22 The Court will rely on the
representation that Dr. Abraham will not provide testimony consistent with the every exposure
theory.
Defendant also argues that the Court should disregard Dr. Abraham’s report because it
contradicts his deposition testimony. For the same reasons set forth above, the Court must reject

21

Docket No. 348 Ex. C, at 4.

22

Docket No. 363, at 10–11.

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this argument. While Dr. Abraham may believe the every exposure theory, his extended report
and his ultimate conclusions in this case rest on more than this theory. Further, there is nothing
inconsistent about the statements Dr. Abraham made during his deposition and the conclusions
he reaches in his extended report.
Finally, Defendant argues that Dr. Abraham should not be permitted to testify about fiber
release levels from asbestos-containing products. Defendant argues that Dr. Abraham is not an
industrial hygienist and is not qualified to testify about such topics. Even if the Court accepts
Defendant’s argument, the Court need not exclude Dr. Abraham’s testimony. Federal Rule of
Evidence 703 provides that “[a]n expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed.” As Dr. Abraham stated in his
deposition, he has reviewed the articles he cited concerning fiber release levels prior to his
involvement in this case.23 Thus, Dr. Abraham can base his opinion concerning fiber release
levels based on facts or data of which he has been made aware.
In their joinders in Defendant Crane Co.’s Motion, the other Defendants raise various
argument to exclude Dr. Abraham’s testimony. However, “as long as a logical basis exists for an
expert’s opinion . . . the weaknesses in the underpinnings of the opinion[ ] go to the weight and
not the admissibility of the testimony.”24 The Court finds that the arguments raised by
Defendants go to the weight, if any, to be given to Dr. Abraham’s opinion, rather than its
admissibility. Therefore, the Court will not exclude Dr. Abraham’s testimony based on those
grounds.
23

Docket No. 348 Ex. B, at 44–45.

24

Compton v. Subaru of Am., Inc., 82 F.3d 1513, 1518 (10th Cir. 1996) (citations omitted)
(internal quotation marks omitted).

8

III. CONCLUSION
It is therefore
ORDERED that Defendant Crane Co.’s Motion to Exclude Specific Causation Testimony
from Plaintiff’s Medical Causation Witness Dr. Jerrold Abraham (Docket No. 348) is DENIED.
DATED this 28th day of February, 2014.
BY THE COURT:

Ted Stewart
United States District Judge

9