Jack et al v. Borg-Warner Morse Tec LLC et al

Filing 628

ORDER granting Defendant Ford Motor Company #464 Motion to Exclude Certain Testimony of Charles Cushing and DENYING the other motions to exclude (Dkt. # #456 , #461 , #463 , #465 , #470 , #483 , #490 , #497 , #511 , #516 ). The court further DENIES Plaintiffs motion to extend the discovery deadline (Dkt. #567 ) as moot. Signed by Judge James L. Robart. (TH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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LESLIE JACK, et al.,

CASE NO. C17-0537JLR

Plaintiffs,

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v.
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ORDER ON MOTIONS TO
EXCLUDE EXPERT
TESTIMONY

BORG-WARNER MORSE TEC
LLC, et al.,

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Defendants.

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I.

INTRODUCTION

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Before the court are several motions to exclude the following experts: Sean
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Fitzgerald, Ronald Gordon, Carl Brodkin, Arnold Brody, Barry Castleman, Charles
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Cushing, and William Longo. (See Dkt.) The following defendants bring the challenges:
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(1) Defendant DCo LLC (f/k/a Dana Companies, LLC) (“DCo”) moves to exclude Sean
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Fitzgerald (1st MTE Fitzgerald (Dkt. # 456); 2d MTE Fitzgerald (Dkt. # 511)); (2) DCo,
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Defendant Ford Motor Company (“Ford”), and Defendant Ingersoll Rand Company
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ORDER - 1

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(“Ingersoll Rand”) move to exclude Ronald Gordon (DCo MTE Gordon (Dkt. # 461);1

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Ford MTE Gordon (Dkt. # 465); Warren Pumps MTE (Dkt. # 470) at 3-8);2 (3) Ingersoll

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Rand, Honeywell, DCo, and Defendant Borg-Warner Morse TEC LLC (“Borg-Warner”)

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move to exclude Carl Brodkin (Warren Pumps MTE at 3-8; Honeywell MTE Brodkin

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(Dkt. # 483);3 DCo MTE Brodkin (Dkt. # 497); Borg-Warner MTE Brodkin (Dkt.

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# 516)); (4) Ingersoll Rand and Honeywell move to exclude Arnold Brody (Warren

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Pumps MTE at 3-8; Honeywell MTE Brody (Dkt. # 490));4 (5) Ford and Ingersoll Rand

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move to exclude Barry Castleman (Ford MTE Castleman (Dkt. # 463);5 Warren Pumps

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MTE at 14-17); (6) Ford moves to exclude Charles Cushing (MTE Cushing (Dkt.

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DCo inadvertently filed the wrong motion at docket entry 461 and attached the correct
motion as a later exhibit. (See Praecipe (Dkt. # 487); Corrected Mot. (Dkt. # 487-1).)
Ingersoll Rand and DCo join former Defendant Warren Pumps LLC’s (“Warren
Pumps”) motion to exclude, part of which challenged Dr. Gordon’s testimony. (See Warren
Pumps MTE at 3-8; 7/23/18 Order (Dkt. # 542) (granting Ingersoll Rand’s motions for joinder);
Not. of Joinder (Dkt. # 592).) On July 30, 2018, the court dismissed Warren Pumps pursuant to
the parties’ stipulation. (7/30/18 Order (Dkt. # 558).) DCo and Defendant Honeywell
International Inc. (“Honeywell”) additionally join Ford’s motion to exclude. (7/20/18 Order
(Dkt. # 539) (granting Honeywell’s motions for joinder); Not. of Gordon Joinder (Dkt. # 473).)
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DCo, Ford, and Ingersoll Rand join Honeywell’s motion to exclude Dr. Brodkin. (Not.
of Brodkin Joinder (Dkt. # 485); 7/19/18 Order (Dkt. # 529) (granting Ford’s motions for
joinder); 7/23/18 Order.)
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DCo, Ford, Ingersoll Rand, and Defendant Union Pacific Railroad Company (“Union
Pacific”) join Honeywell’s motion to exclude Dr. Brody. (Not. of Brody Joinder (Dkt. # 492);
7/19/18 Order; 7/23/18 Order; 7/24/18 Order (Dkt. # 544) (granting Union Pacific’s motions for
joinder).)
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DCo, Honeywell, and Union Pacific join Ford’s motion to exclude Mr. Castleman.
(DCo Not. of Castleman Joinder (Dkt. # 471); 7/20/18 Order; 7/24/18 Order.)
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ORDER - 2

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# 464));6 and (7) Ingersoll Rand and DCo move to exclude videos and studies conducted

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by William Longo (Warren Pumps MTE at 8-14).
Defendant Viad Corporation (“Viad”) opposes the motion to exclude Mr. Cushing

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(Cushing Resp. (Dkt. # 573)), and Plaintiffs Leslie Jack and David Jack (collectively,

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“Plaintiffs”) oppose the remaining motions to exclude (Fitzgerald Resp. (Dkt. # 571);

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Gordon Resp. (Dkt. # 554); Brodkin Resp. (Dkt. # 561); Brody Resp. (Dkt. # 559);

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Castleman Resp. (Dkt. # 563); Longo Resp. (Dkt. # 569)). Plaintiffs additionally file a

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motion to extend the discovery deadline for Mr. Fitzgerald’s supplemental report. (Mot.

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(Dkt. # 567).)
The court has reviewed the motions, the parties’ submissions in support of and in

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opposition to the motions, the relevant portions of the record, and the applicable law.

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Being fully advised,7 the court GRANTS Ford’s motion to exclude Mr. Cushing (Dkt.

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# 464) and DENIES the remaining motions (Dkt. ## 456, 461, 463, 465, 470, 483, 490,

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497, 511, 516). The court further DENIES Plaintiffs’ motion to extend the discovery

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deadline (Dkt. # 567) as moot.

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//

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DCo and Honeywell join Ford’s motion to exclude Mr. Cushing. (Not. of Cushing
Joinder (Dkt. # 472); 7/20/18 Order.)
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Ford and Honeywell request oral argument on their motions. (See Ford MTE Gordon at
1; Ford MTE Castleman at 1; Ford MTE Cushing at 1; Honeywell MTE Brodkin at 1; Honeywell
MTE Brody at 1.) Plaintiffs request oral argument on all motions. (See, e.g., Fitzgerald Resp. at
1.) The court finds that oral argument on these motions would not be helpful to its disposition of
the motions. See Local Rules W.D. Wash. LCR 7(b)(4). Moreover, district courts are not
required to hold a separate Daubert hearing before ruling on motions to exclude. See
Millenkamp v. Davisco Foods Int’l, Inc., 562 F.3d 971, 979 (9th Cir. 2009). The court finds that
the briefing, expert reports, deposition testimony, and other exhibits attached to the motions
provide an adequate record from which the court can make its rulings. See id.

ORDER - 3

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II.

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BACKGROUND

Plaintiffs claim that decedent Patrick Jack was exposed to asbestos from various

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asbestos-containing products manufactured or supplied by the defendants and that as a

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result of this asbestos exposure, Mr. Jack developed mesothelioma and died from the

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disease. (SAC (Dkt. # 253) ¶¶ 46E-46F.) They allege that Mr. Jack was exposed when

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he worked as a machinist in the Navy and in the Naval reserve from 1954 to 1962; as a

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machinist and piping inspector at the Puget Sound Naval Shipyard (“the Shipyard”) from

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1967 to 1973; as a mechanic from 1962 to 1967; and when he performed automotive

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work on personal vehicles from 1955 to 2001. (Brodkin Adams Decl. ¶ 2, Ex. 2

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(“Brodkin Rep.”) at 1.1.)8 Plaintiffs bring various product liability and negligence claims

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and seek compensatory and punitive damages. (SAC ¶¶ 47-59.)

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The parties rely on expert witness testimony opining on matters ranging from

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asbestos exposure to medical causation. (See generally Dkt.) The court now summarizes

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the testimony of the challenged expert witnesses.

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A.

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Sean Fitzgerald
Mr. Fitzgerald is a licensed geologist, mineralogist, and asbestos expert with 30

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years of experience analyzing asbestos. (Fitzgerald Adams Decl. (Dkt. # 572) ¶ 2, Ex. F

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(“4/17/18 Fitzgerald Rep.”) ¶ 1.) He is the Director of Research and Legal Services at the

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Scientific Analytical Institute. (Id.) Mr. Fitzgerald received training on asbestos-related

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//

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Dr. Brodkin divides his report into sections and then numbers the pages within those
sections. (See Brodkin Rep. at 2.) Thus, the court cites the section number, followed by a period
and the page number.

ORDER - 4

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air sampling and analysis of asbestos-containing materials. (Id. ¶ 5.) He has been

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certified as an Environmental Protection Agency (“EPA”) asbestos inspector. (Id.) He

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has published several articles on asbestos in peer-reviewed literature. (See id. ¶ 7.)
On October 24, 2017, Plaintiffs’ counsel sent Mr. Fitzgerald a sealed box stamped

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“VICTOR GASKETS” with the words “Allis Chalmers complete O-Haul set”

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handwritten on the top and an attached inventory list titled “Victor Gasket Set.” (See id.

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¶ 12; see also Fitzgerald Adams Decl. ¶ 2, Ex. A (photograph of sealed box with Victor

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Gaskets labeling).) Plaintiffs’ counsel found this sealed box in Mr. Jack’s garage, and

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Mr. Jack testified that the box contained gaskets “for an old Allis-Chalmers bulldozer

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[he] worked on.” (Fitzgerald Adams Decl. ¶ 2, Ex. B (“Jack Dep.”) at 53:21-54:1.) Mr.

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Fitzgerald noted that the box “appeared to be unopen and unused and in its original

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condition.” (4/17/18 Fitzgerald Rep. ¶ 12.)

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Utilizing EPA methods 600/R-93/116 and 600/M3-82-020, Mr. Fitzgerald

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performed a bulk asbestos analysis using Polarized Light Microscopy (“PLM”) of the

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gaskets in the sealed box. (Id. ¶ 13.) He found that of the 31 gaskets in the box, six

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“contained between 25 and 60% chrysotile asbestos.” (Id. ¶ 14.) Based on his testing,

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Mr. Fitzgerald concluded to a reasonable degree of scientific certainty that “the Victor

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gaskets in Mr. Jack’s garage . . . contained 25 to 65% chrysotile asbestos.” (Id. ¶ 15.)

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On May 29, 2018, Dr. Gordon, another one of Plaintiffs’ expert witnesses, notified

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Plaintiffs’ counsel that he found both chrysotile and tremolite asbestos in Mr. Jack’s lung

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ORDER - 5

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and lymph node tissue.9 (Fitzgerald Adams Decl. ¶ 3.) Plaintiffs’ counsel notified Mr.

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Fitzgerald of those findings. (Id. ¶ 4.) Because Mr. Fitzgerald had tested only for

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chrysotile—and not tremolite—Mr. Fitzgerald retested the gaskets “specifically for

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amphiboles such as the tremolite found by [Dr.] Gordon.” (Fitzgerald Kero Decl. (Dkt.

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# 457) ¶ 3, Ex. 2 (“6/8/18 Fitzgerald Rep.”) at 1.)

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Mr. Fitzgerald followed the analytical procedures in test method

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EPA/600/R-93/116 to analyze samples using Transmission Electronic Microscopy

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(“TEM”) from the gaskets previously found to contain chrysotile asbestos. (Id. at 2.)

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The TEM analysis revealed that various forms of amphibole asbestos—including

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tremolite, actinolite, and anthophyllite—were throughout the gaskets. (Id.) Indeed, all

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six of the gaskets “contained countable tremolite and/or actinolite asbestos fibrous

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structures.” (Id.) Mr. Fitzgerald shared those findings with Plaintiffs’ counsel in his June

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8, 2018, supplemental report. (See generally 6/8/18 Fitzgerald Rep.) That same day,

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Plaintiffs’ counsel disclosed the supplemental report to defendants and offered Mr.

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Fitzgerald for further deposition on June 15, 2018. (Fitzgerald Adams Decl. ¶ 5;

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Fitzgerald Kero Decl. ¶ 8.) DCo declined to depose Mr. Fitzgerald after the supplemental

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report. (Id. ¶ 7.)

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//

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//

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Chrysotile and tremolite asbestos are from two distinct families of asbestos. (See Brody
Gaston Decl. (Dkt. # 491) ¶ 3, Ex. 2 (“Brody Rep.”) ¶ 7.) Tremolite asbestos are a type of
amphibole asbestos, whereas chrysotile asbestos are the only type of serpentine asbestos. (Id.)
Chrysotile is frequently contaminated with tremolite. (Id.) The class of amphibole asbestos is
known to be more potent in causing asbestos-diseases than chrysotile. (Id. ¶ 30.)

ORDER - 6

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B.

Ronald Gordon
Since 2003, Dr. Gordon has been a research professor and the Director of Electron

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Microscopy in the Department of Pathology at the Mount Sinai School of Medicine.

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(Gordon Adams Decl. (Dkt. # 555) ¶ 2, Ex. C (“Gordon CV”) at 1; Id. ¶ 2, Ex. A

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(“Gordon Rep.”) at 4.) He holds a B.S. and a Ph.D., and he was a post-doctoral fellow as

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well as an instructor of pathology at the State University of New York. (Gordon Rep. at

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4.) Dr. Gordon serves as a reviewer for several journals, including the American Journal

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of Pathology, American Journal of Industrial Medicine, and American Review of

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Respiratory Disease. (See Gordon CV at 3.) He additionally serves as a grant reviewer

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for the National Institutes of Health and the National Science Foundation. (Id. at 3-4.)

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Dr. Gordon has published over 200 peer reviewed manuscripts and over a dozen books

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and chapters. (Gordon Rep. at 4.)

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Dr. Gordon reviewed Mr. Jack’s pathology report and answers to interrogatories

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and analyzed Mr. Jack’s lung and lymph node tissue. (Id. at 5.) Dr. Gordon’s electron

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microscopic analysis of Mr. Jack’s lung tissue revealed “two amphibole asbestos fibers

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. . . identified as amosite type asbestos.” (Id.) Dr. Gordon also found “10 asbestos bodies

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per gram wet weight of lung.” (Id.) Electron microscopic analysis of Mr. Jack’s lymph

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node tissue “revealed one chrysotile and one tremolite asbestos fiber.” (Id. at 6.) Based

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on these findings, Dr. Gordon concludes that Mr. Jack had “substantial exposure to

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amosite, chrysotile[,] and tremolite asbestos.” (Id.; Gordon Adams Decl. ¶ 2, Ex. B

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(“Gordon Dep.”) at 62:11-16 (stating that Mr. Jack “had to have been exposed to quite a

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bit of [fibers]” based on his “exposure history and the fact that we’re still finding

ORDER - 7

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chrysotile . . . and/or tremolite . . . in his lungs”).) Dr. Gordon further opines to a

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reasonable degree of scientific certainty that “[Mr. Jack had] a mixed occupational

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exposure to asbestos which is documented by his fiber burden of chrysotile and

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amphibole asbestos fibers, tremolite, amosite and chrysotile and asbestos body counts.”

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(Id. at 7-8.) Dr. Gordon concludes that his “analytic fiber analysis findings of chrysotile,

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tremolite[,] and amosite . . . would account for the development of Mr. Jack’s pleural

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malignant mesothelioma.” (Id. at 8.)

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At his deposition, Dr. Gordon testified that he has looked at a number of cases
analyzing the presence of asbestos fibers in brake dust and automotive products. (Gordon

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Adams Decl. ¶ 2, Ex. B (“Gordon Dep.”) at 15:23-16:2.) He also conducted a few

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studies specifically concerning brakes and clutches. (Id. at 16:5-17:3.) For instance, he

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has analyzed the dust collected from various automobile parts. (Id. at 18:1-19:3; see also

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id. at 92:6-8 (“I looked at brake dust . . . from car brakes.”).) However, Dr. Gordon

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acknowledged that he never researched fiber release from automotive products, although

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he has read reports on the subject. (Id. at 17:4-18; 92:19-25.)

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Dr. Gordon also expounded on his fiber burden analysis of the lymph nodes. He

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qualified lymph nodes as places in the body where “fibers and particles go . . . once they

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leave the lung or other structures.” (Id. at 112:7-9.) He explained that both the Helsinki

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criteria report and published research by Ronald Dodson support analyzing lymph nodes

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to determine the fiber burden. (Id. at 36:20-37:15.) However, Dr. Gordon acknowledged

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that on one occasion, he participated in a study attempting to find a correlation between

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asbestos exposure and fibers in the lymph nodes, but the researchers eventually

ORDER - 8

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terminated the study when the correlation they were looking for did not materialize. (Id.

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at 61:12-62:1.)

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Opposing counsel questioned Dr. Gordon on whether the chrysotile fibers found in

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Mr. Jack’s tissue originated from his time in the Navy or at the shipyard. (Id. at

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54:10-21.) Dr. Gordon responded that it was unlikely the fibers were from that time

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period because any chrysotile fibers from Mr. Jack’s stint in the Navy would have

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digested away by the time of the fiber burden analysis. (Id. at 54:22-55:2.)

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Subsequently, Plaintiffs’ counsel asked Dr. Gordon the following hypothetical:

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Q: I want you . . . to assume that there was a box of Victor gaskets found in
Mr. Jack’s garage after his diagnosis with mesothelioma. Can you assume
that?

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A: I can.

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Q: And I want you also to assume that those Victor gaskets were tested for
asbestos content, and tremolite and chrysotile asbestos was found in the box
of Victor gaskets. Do you have that?

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A: I do.

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Q: How does that affect your opinions in this case about the source of the
tremolite and chrysotile fiber found in Mr. Jack’s lymph system?

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A: Well, based on the times that he was exposed to all of these products . . .
it’s more than likely that the chrysotile and the tremolite came from those
products.

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(Id. at 140:14-141:8.)
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C.

Carl Brodkin

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Dr. Brodkin practices occupational and environmental medicine. (See Brodkin
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Adams Decl. (Dkt. # 562) ¶ 2, Ex. 1 (“Brodkin CV”) at 1.) He holds an M.D. from the
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ORDER - 9

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University of Colorado Medical School and an M.P.H. from the University of

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Washington, School of Public Health. (Id.) For his report, Dr. Brodkin conducted a

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telephonic interview of Mr. Jack and reviewed his medical records, pathology reports,

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deposition testimony, employment records, naval personnel records, and other discovery

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documents regarding Defendants’ products. (Brodkin Rep. at 1.4-11.) He also relied on

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a number of studies on occupational exposure to asbestos. (See id. at 6.)

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Dr. Brodkin recounts in detail Mr. Jack’s occupational history, as well as the

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asbestos-containing products that he worked with in each job. (See id. at 2.1-23.) For

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instance, Dr. Brodkin notes that Mr. Jack worked intermittently on automobiles from

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1955 to after 2001. (Id. at 2.10.) During this time, Mr. Jack had direct exposure to

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asbestos fibers from installing, cleaning, and removing brakes. (Id. at 2.10-11; see also

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id. at 2.13 (qualifying Mr. Jack’s exposure during his work with brakes as an identified

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exposure).) Dr. Brodkin opines that Mr. Jack also had direct exposure to asbestos when

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he used compressed air to blow out clutch bell-housings when he removed clutches. (Id.

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at 2.13-14.) Mr. Jack specifically recalled working with “lots” of Borg-Warner clutches

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and performing “repeat clutch jobs” at the shop and on personal vehicles. (See id. at

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2.14.) Dr. Brodkin qualifies Mr. Jack’s removal of clutches as an identified exposure,

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whereas the installation and regular handling of the clutches only subjected Mr. Jack to

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de minimis exposure. (Id. at 2.15.)

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Based on Mr. Jack’s occupational history, Dr. Brodkin concludes that Mr. Jack’s

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mesothelioma is “causally related to direct and/or bystander occupational asbestos

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exposure” from Mr. Jack’s time as a naval machinery repairman aboard the naval vessel;

ORDER - 10

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a shipyard shop machinist and a nuclear inspector at the Shipyard; and an automotive

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mechanic. (Id. at 5.1.) Specifically, as to the exposure during his automotive work, Dr.

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Brodkin observes that Mr. Jack regularly worked with brakes, clutches, and engine

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gaskets over his three decades of automotive work, often in an enclosed garage setting.

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(Id. at 5.4.) Such work included blowing out brakes with compressed air; grinding,

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sanding, and filing new brakes in the installation process; cleaning up brakes; and

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removing clutches with a compressed air blowout. (Id.) The literature reveals that these

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activities release large amounts of asbestos fibers. (See id.) Moreover, the products

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themselves have a high asbestos content. (Id.) Thus, Dr. Brodkin describes Mr. Jack’s

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exposure to asbestos through his automobile work as “significant.” (See id.)
At his deposition, Dr. Brodkin stated that he could not express Mr. Jack’s total

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exposure to asbestos because “there is not a way to quantify Mr. Jack’s dose” given that

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he was “not wearing a dosimeter” at the time of exposure.10 (Brodkin Gaston Decl. (Dkt.

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# 486) ¶ 19, Ex. 18 (“Brodkin Dep.”) at 26:23-27:6, 40:1-7; see also id. at 53:5-9 (“When

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you use the word ‘quantitative,’ it implies that there is some actual measurement. That’s

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not possible in Mr. Jack’s case.”).)11 Indeed, Dr. Brodkin notes that the literature on

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asbestos exposure does not identify a specific numerical threshold above which there is

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A dosimeter is a device that measures exposure.

Other parties also attach portions of Dr. Brodkin’s deposition testimony to their
briefing. (See Brodkin Adams Decl. ¶ 2, Ex. 3; Brodkin Ross Decl. (Dkt. # 517) ¶ 3, Ex. C.)
Despite the multiple filings, the court refers generally to “Brodkin Dep.” when citing to Dr.
Brodkin’s deposition testimony.
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ORDER - 11

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risk of disease, although various studies provide a range or exposure that is correlated

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with increased risk of disease. (Id. at 36:13-22, 50:21-24, 161:17-23.)

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Instead, Dr. Brodkin utilizes a qualitative approach, where the totality of the

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evidence—that is, the occupational and environmental history—determines whether an

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exposure increases the risk of an asbestos-related disease. (Id. at 35:5-8, 40:5-7.)

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Whether an exposure is significant depends on the intensity, the duration, and the

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frequency of that exposure. (Id. at 52:10-21; see also id. at 193:15-17 (“My assessment

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. . . is qualitative in terms of characterizing the duration, frequency, [and] intensity of

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exposures.”).) Dr. Brodkin acknowledges that “[n]ot all exposures are significant.” (Id.

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at 34:2-8, 122:15-24; see also id. at 45:1-3 (“Just because you have a source of asbestos

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does not mean it is a significant exposure.”).) Rather, he looks for an “identified

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exposure,” which is an exposure “that has a well-characterized source of asbestos, an

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activity that disrupts that source to generate significant airborne asbestos fibers that have

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sufficient intensity to overcome the body’s defenses, add to the body’s burden of

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asbestos, and, therefore, increase risk for asbestos-related diseases.” (Id. at 47:2-7.)

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D.

Arnold Brody

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Dr. Brody is the Professor Emeritus in the Pathology Department at Tulane

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University Medical School and an adjunct professor at North Carolina State University in

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the Department of Molecular and Biomedical Sciences. (Brody Rep. ¶ 1.) He holds a

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B.S. in Zoology, an M.S. in Functional Vertebrate Anatomy, and a Ph.D. in cell biology.

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(Id.) He focuses on the pathobiology of lung diseases and conducts experiments to

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understand—on a cellular and genetic level—the progression of a disease. (Id. ¶ 2.)

ORDER - 12

Dr. Brody’s report lays out what asbestos is and how asbestos fibers cause disease.

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(See generally id.) He gives an overview of the types of asbestos fibers and the diseases

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that asbestos fibers induce. (Id. ¶¶ 7-17.) He then describes how asbestos fibers

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overcome the body’s natural defenses and cause abnormalities on a cellular level,

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ultimately leading to cancer. (Id. ¶¶ 22-43.) Dr. Brody states that “asbestos-induced

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cancers are dose-response diseases” and that the “cumulative dose . . . cause[s] the

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disease.” (Id. ¶ 44.) He further expounds that “[s]cientists have established that brief or

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low-level cumulative exposures to asbestos significantly increase the risk of developing

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mesothelioma.” (Id.) The “consensus scientific opinion . . . is that no amount of

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exposure to asbestos above the background levels present in ambient air has been

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established as too low to induce mesothelioma.” (Id. ¶ 45.) In other words, “[t]he

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mainstream scientific community is in consensus that there is no safe level of exposure to

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asbestos.” (Id.)

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In his deposition, Dr. Brody reiterated that brief exposures can increase the risk of

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developing mesothelioma, pointing to cases of mesothelioma where the patients had only

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been exposed for short periods of time. (Brody Adams Decl. (Dkt. # 560) ¶ 2, Ex. 9

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(“Brody Dep.”) at 28:20-29:4.)12 He stated that although background levels of exposure

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are safe, whether an individual contracts mesothelioma often depends on that individual’s

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susceptibility. (See id. at 30:22-31:5.) As for levels of exposure above background, Dr.

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//

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Honeywell also attaches portions of Dr. Brody’s deposition testimony to its briefing.
(See Brody Gaston Decl. ¶ 4, Ex. 3.) Despite the multiple filings, the court refers generally to
“Brody Dep.” when citing to Dr. Brody’s deposition testimony.

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ORDER - 13

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Brody states that science has not determined whether there is a level that does not

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increase the risk of disease. (Id. at 31:6-22.) However, Dr. Brody believes that every

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exposure adds to the cumulative dose, or total amount, to which the individual is

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exposed. (Id. at 34:13-16.)

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E.

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Barry Castleman
Dr. Castleman works in the field of occupational and environmental health policy

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and focuses on “the recognition of risk factors and the prevention of disease from

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industrial activities.” (Castleman Adams Decl. (Dkt. # 564) ¶ 2, Ex. A (“Castleman

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Rep.”) at 1.)13 He holds a B.S. in Chemical Engineering, an M.S.E. in Environmental

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Engineering, and a Doctor of Science Degree in Health Policy. (Id.) As part of his

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doctorate work, he concentrated in the areas of toxicology, epidemiology, biostatistics,

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physiology, and public health policy. (Id.) Dr. Castleman additionally authored a thesis

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titled “Asbestos: An Historical Case Study of Corporate Response to an Industrial Health

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Hazard,” which was later published as a book: “Asbestos: Medical and Legal Aspects.”

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(Id.) The thesis and book contain “an historical review of the asbestos problem,”

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including “a comprehensive review of medical literature of all kinds, as well as other

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literature available.” (Id. at 1-2.) Several courts, including the Supreme Court, have

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cited Dr. Castleman’s book. See, e.g., Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 631

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(1997) (Breyer, J. concurring in part and dissenting in part).

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//

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The court cites the page number on the bottom center of the document. (See generally
Castleman Rep.)

ORDER - 14

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Dr. Castleman has over 40 years of experience analyzing asbestos and other

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occupational and environmental health problems. (Id. at 1.) He has examined both

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published and unpublished historical documents—including corporate documents, trade

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association minutes, and corporate officials’ testimony—regarding the asbestos hazard.

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(Id. at 2.) Additionally, he has interviewed “old-timers in the field of industrial medicine

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and hygiene,” including physicians and other authorities who studied asbestos in the

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1900s. (Id.) In addition to his book, Dr. Castleman published numerous articles on

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asbestos (see id. at 20-28) and testified in front of both the United States Senate and

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House of Representatives regarding asbestos (see id. at 19-20). He served as a consultant

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to various organizations, including the EPA, the Occupational Safety and Health

11

Administration (“OSHA”), and the National Academy of Sciences. (Id. at 18.)

12

In his report, Dr. Castleman reviews the body of knowledge regarding asbestosis,

13

lung cancer, and mesothelioma dating back to the 1800s. (See id. at 2-7.) Specifically,

14

he recounts studies in the automotive industry that analyzed asbestos in brakes, clutches,

15

and gaskets, as well as the history of regulation addressing asbestos in brake and clutch

16

work. (Id. at 14-15.) Based on his review, Dr. Castleman concludes that “the literature

17

had largely established that asbestos was a lethal material by the early 1930s” and that

18

“[b]y the mid-1940s, it was widely accepted . . . that asbestos inhalation could also cause

19

lung cancer.” (Id. at 17.) Mesothelioma, in particular, became “a subject of intense

20

discussion in the early 1960s.” (Id.) This literature, Dr. Castleman maintains, “was

21

available in the medical libraries to anyone who knew how to spell the word asbestosis”

22

and would not require a computer or other modern techniques to access. (Id.)

ORDER - 15

1

F.

Charles Cushing

2

Dr. Cushing is the President of C.R. Cushing & Co., Inc., a firm of “naval

3

architects, marine engineers, and transportation consultants.” (Ford MTE Cushing, Ex. 1

4

(“Cushing Rep.”) at 27.)14 He holds a B.S. in Marine Transportation, a B.S. in Naval

5

Architecture and Marine Engineering, an M.S. in Ocean Transportation, and a Ph.D. in

6

Maritime Studies. (Id.) He has designed and constructed more than 250 vessels. (Id.)

7

His expertise also extends to risk analyses, safety audits, vessel maintenance, and air

8

quality monitoring. (Id.) Dr. Cushing belongs to numerous shipping and naval

9

professional associations, and he has authored several articles on ship design, naval

10

operations, and marine safety investigations. (Id. at 29.)
Dr. Cushing reviewed Mr. Jack’s deposition testimony, interrogatory answers,

11
12

personnel records, and the second amended complaint. (Id. at 26.) He summarizes Mr.

13

Jack’s career as a machinery repairman aboard various naval vessels and his work as an

14

inside machinist, a nuclear inspector, and an outside and inside engineer at the Shipyard.

15

(Id. at 4-13.) Dr. Cushing then reviews the use of asbestos by the U.S. Navy on naval

16

vessels. (Id. at 14-22.) Based on his review, Dr. Cushing concludes that Mr. Jack was

17

likely exposed to asbestos aboard naval vessels and at the Shipyard. (Id. at 23.) Dr.

18

Cushing additionally opines that Mr. Jack was likely exposed to asbestos when he

19

worked on automobiles, which involved handling clutches, brakes, and gaskets. (Id.)

20

//

21
14

22

The court cites the page number on the bottom center of the document. (See generally
Cushing Rep.)

ORDER - 16

1
2

G.

William Longo
Dr. Longo has a Ph.D. in Materials Science and Engineering and has over 20 years

3

of experience utilizing electron microscopy methods to analyze all types of asbestos

4

samples. (Longo Adams Decl. (Dkt. # 570) ¶ 2, Ex. 3 (“Longo Aff.”) ¶ 2.) He was the

5

president of Materials Analytical Services, Inc. (“MAS”), an engineering consulting firm

6

that specializes in analyzing asbestos-containing products. (Id.) Although Plaintiffs have

7

not retained Dr. Longo as a testifying witness, Plaintiffs’ expert witnesses rely on studies

8

by Dr. Longo or MAS to determine the amount of dust Defendants’ products emit. (See

9

Longo Resp. at 1.) Plaintiffs also intend to offer two video demonstrations of these

10

studies to illustrate the visible dust released when working with brakes, gaskets, and other

11

products. (Id.; Warren Pumps MTE at 8 n.38.)

12

In their studies of gaskets, Dr. Longo and MAS utilize both a direct sample

13

preparation method in accordance with the NIOSH 7400 method and a TEM indirect

14

method to analyze how much airborne asbestos is released during the studies. (See

15

Longo Aff. ¶¶ 5, 5A.) The government recognizes TEM indirect method as a standard

16

method of analysis, and several peer-reviewed publications utilize this methodology to

17

evaluate asbestos exposures. (Id. ¶ 5D.)

18

Dr. Longo and MAS additionally employ a technique called “Tyndall Light

19

Scattering” (“Tyndall lighting”) in their video demonstrations. (See id. ¶¶ 6A-6E.) The

20

EPA developed Tyndall lighting as a standard testing method for visualizing microscopic

21

particles for industrial hygiene and environmental studies. (Id. ¶ 6A.) Industrial

22

hygienists generally use Tyndall lighting to more easily view the pathway of exposure.

ORDER - 17

1

(Id. ¶¶ 6A-6B.) Dr. Longo attests that Tyndall lighting “is a standard method that has

2

existed for decades . . . [and] has been extremely effective in demonstrating the pathways

3

of exposure.” (Id. ¶ 6D.)

4
5

Having summarized the expert testimonies at issue, the court now addresses the
motions to exclude.

6
7
8
9
10

III.
A.

ANALYSIS

Legal Standard
Rule 702 of the Federal Rules of Evidence governs the admission of expert

testimony:
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:

11
12

(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;

13

(b) the testimony is based on sufficient facts or data;

14

(c) the testimony is the product of reliable principles and methods; and

15

(d) the expert has reliably applied the principles and methods to the facts of
the case.

16
Fed. R. Evid. 702. Rule 702 requires that the expert be qualified and that the “‘[e]xpert
17
testimony . . . be both relevant and reliable.’” Estate of Barabin v. AstenJohnson, Inc.,
18
740 F.3d 457, 463 (9th Cir. 2014) (quoting United States v. Vallejo, 237 F.3d 1008, 1019
19
(9th Cir. 2001)); Fed. R. Evid. 702. Relevancy “simply requires that ‘[t]he evidence . . .
20
logically advance a material aspect of the party’s case.’” Estate of Barabin, 740 F.3d at
21
463 (quoting Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007)).
22

ORDER - 18

1

Reliability requires the court to assess “whether an expert’s testimony has a

2

‘reliable basis in the knowledge and experience of the relevant discipline.’” Id. (quoting

3

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999)) (internal citations and

4

alterations omitted). The Supreme Court has suggested several factors that courts can use

5

in determining reliability: (1) whether a theory or technique can be tested; (2) whether it

6

has been subjected to peer review and publication; (3) the known or potential error rate of

7

the theory or technique; and (4) whether the theory or technique enjoys general

8

acceptance within the relevant scientific community. See Daubert v. Merrell Dow

9

Pharm., Inc., 509 U.S. 579, 592-94 (1993). The reliability inquiry is flexible, however,

10

and trial judges have broad latitude to focus on considerations relevant to a particular

11

case. See Kumho Tire, 526 U.S. at 150.
In determining reliability, the court must rule on the soundness of the expert’s

12
13

methodology, Estate of Barabin, 740 F.3d at 463 (citing Primiano v. Cook, 598 F.3d 558,

14

564 (9th Cir. 2010)), and the analytical connection between the data, the methodology,

15

and the expert’s conclusions, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see also

16

Cooper, 510 F.3d at 942 (“Rule 702 demands that expert testimony relate to scientific,

17

technical or other specialized knowledge, which does not include unsubstantiated

18

speculation and subjective beliefs.”); Fed. R. Evid. 702 Advisory Committee’s Notes to

19

2000 Amendments (“[T]he testimony must be the product of reliable principles and

20

methods that are reliably applied to the facts of the case.”). The court should not rule on

21

the correctness of the expert’s conclusions. Estate of Barabin, 740 F.3d at 463. “[T]he

22

//

ORDER - 19

1

proponent of the expert . . . has the burden of proving admissibility.” Cooper, 510 F.3d

2

at 942 (citing Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996)).

3

Defendants raise a myriad of arguments against each of the challenged experts,

4

and the court addresses each expert in turn.

5

B.

Sean Fitzgerald

6

DCo moves to exclude Mr. Fitzgerald’s testimony for two reasons: (1) his

7

supplemental report finding tremolite was untimely; and (2) his conclusions regarding the

8

asbestos content of Victor gaskets are based on speculation and thus are irrelevant,

9

unreliable, and unhelpful to a trier of fact. (See generally 1st MTE Fitzgerald; 2d MTE

10
11

Fitzgerald.) The court disagrees with both arguments.
First, as to the timeliness of disclosure, DCo is correct that a party must submit its

12

expert witness disclosures “at the times and in the sequence that the court orders.” Fed.

13

R. Civ. P. 26(a)(2)(C); (see 1st MTE Fitzgerald at 4-11.) However, “if the party learns

14

that in some material respect the disclosure or response is incomplete or incorrect, and if

15

the additional or corrective information has not otherwise been made known to the other

16

parties during the discovery process or in writing,” the party “must supplement or correct

17

its disclosure or response.” Id. 26(e)(1). Rule 26(e) is not “a loophole through which a

18

party who . . . wishes to revise her disclosures in light of her opponent’s challenges to the

19

analysis and conclusions therein, can add to them to her advantage after the court’s

20

deadline.” Luke v. Family Care & Urgent Med. Clinics, 323 F. App’x 496, 500 (9th Cir.

21

2009). Instead, Rule 26(e) applies only when the party “correct[s] an inaccuracy” or

22

“fill[s] in a gap based on information previously unavailable.” Id.

ORDER - 20

1

Mr. Fitzgerald’s supplemental report falls within the ambit of Rule 26(e). After

2

learning that Dr. Gordon found tremolite—information that was previously unavailable—

3

Mr. Fitzgerald “fill[ed] in a gap” in his prior report by retesting the gaskets for tremolite.

4

See Luke, 323 F. App’x at 500; (6/8/18 Fitzgerald Rep. at 1.) The situation here is unlike

5

that in Luke, upon which DCo relies, where the court excluded an untimely expert

6

declaration that “attempted to fix the weakness” identified by a summary judgment

7

motion. See 323 F. App’x at 500. Accordingly, Mr. Fitzgerald’s supplemental report is

8

timely. As such, the court denies DCo’s motion to exclude on this basis and denies

9

Plaintiffs’ motion to extend the discovery deadline for Mr. Fitzgerald as moot.

10

Second, the court finds that Mr. Fitzgerald’s conclusion regarding the asbestos

11

content in the gaskets is relevant, reliable, and helpful to the trier of fact. DCo maintains

12

that the testing of the gaskets found in Mr. Jack’s garage is irrelevant because (1) “there

13

is no evidence any of the asbestos-containing gaskets . . . are Victor gaskets,” and (2)

14

“there is no evidence [Mr. Jack] was exposed to any of the [tested] asbestos-containing

15

gaskets.” (2d MTE Fitzgerald at 8.) DCo misstates the record in its first point and

16

misconstrues the law in its second. The record contains sufficient evidence upon which a

17

jury may infer that the gaskets Mr. Fitzgerald tested were Victor gaskets: the gaskets

18

were found in a sealed box bearing the Victor logo with an inventory list titled “Victor

19

Gasket Set” (see Fitzgerald Adams Decl. ¶ 2, Ex. A; 6/8/18 Fitzgerald Rep. at 4), Mr.

20

Jack testified that the box contained Victor gaskets for a vehicle he was working on (see

21

Jack Dep. at 53:21-54:1), and the box remained sealed until Mr. Fitzgerald’s testing

22

(4/17/18 Fitzgerald Rep. ¶ 12). When opened, the gaskets in the box matched the

ORDER - 21

1

inventory list. (6/8/18 Fitzgerald Rep. at 1.) And at least one of the gaskets had a Victor

2

logo. (See Fitzgerald Adams Decl. ¶ 2, Ex. E (displaying a picture of the gasket).)

3

Similarly, the record contains evidence that Mr. Jack worked with Victor gaskets.

4

Mr. Jack testified that he recognized the box as containing Victor gaskets “for an old

5

Allis-Chalmers bulldozer I worked on.” (Jack Dep. at 53:23-54:1.) Moreover, he

6

specifically recalled Victor as a brand he worked with. (Id. at 43:18-23; 210:20-23.) But

7

even if Mr. Jack was not exposed to those specific gaskets, their asbestos content is

8

nonetheless relevant because it indicates the asbestos content in Victor gaskets generally.

9

Such information undoubtedly “logically advance[s] a material aspect of [Plaintiffs’]

10

case.” See Cooper, 510 F.3d at 942.
DCo’s reliability arguments are similarly unavailing. DCo first contends that

11
12

“there is no evidence that the asbestos-containing gaskets [Mr. Fitzgerald’s] laboratory

13

tested actually came from [Mr. Jack’s] garage.” (2d MTE Fitzgerald at 8.) But upon

14

receiving the sealed box of gaskets, Mr. Fitzgerald noted that the box had the same label

15

and same handwritten note as the box from Mr. Jack’s garage. (See 6/8/18 Fitzgerald

16

Rep. at 1; compare id., Ex. 1 (Mr. Fitzgerald’s pictures of the box), with Fitzgerald

17

Adams Decl. ¶ 2, Ex. A (picture of box in Mr. Jack’s garage).) Moreover, the chain of

18

custody document shows that the box transferred from Mr. Jack to Plaintiffs’ counsel to

19

Mr. Fitzgerald. (Fitzgerald Adams Decl. ¶ 2, Ex. D at 5.) DCo may certainly

20

cross-examine Mr. Fitzgerald about the chain of custody, but the fact that the items

21

changed hands does not warrant exclusion.

22

//

ORDER - 22

Lastly, DCo argues that Mr. Fitzgerald’s methodology is unreliable because it

1
2

should be used only for building materials and insulation, not automotive gaskets. (2d

3

MTE Fitzgerald at 9.) But the record evinces that both EPA methods and PLM are

4

accepted and routinely used by scientists in the field. (See Fitzgerald Adams Decl. ¶ 2,

5

Ex. G (“Fitzgerald Dep.”) at 20:23-21:6, 42:11-25.) Mr. Fitzgerald’s lab has performed a

6

PLM analysis hundreds, if not thousands, of times to determine the presence of asbestos

7

in automotive gaskets. (Id. at 26:1-9.) Because Mr. Fitzgerald’s methodology is sound,

8

any qualms DCo has regarding the implementation of that methodology—such as

9

whether Mr. Fitzgerald compared the tested gaskets to the correct known samples—may

10

be addressed on cross-examination. See Estate of Barabin, 740 F.3d at 463.
In sum, Mr. Fitzgerald’s expert testimony is both relevant and reliable. See id.

11
12

Accordingly, the court denies both of DCo’s motions to exclude Mr. Fitzgerald’s

13

testimony.

14

C.

15

Ronald Gordon, Carl Brodkin, and Arnold Brody
Defendants’ challenges to Dr. Gordon, Dr. Brodkin, and Dr. Brody all involve the

16

application of the “every exposure theory.” (See, e.g., Warren Pumps MTE at 3-8.)

17

Thus, the court first addresses the admissibility of that theory and its variants before

18

turning to the admissibility of each expert.

19

1. Every Exposure Theory

20

The “every exposure” theory posits that “any exposure to asbestos fibers

21

whatsoever, regardless of the amount of fibers or length of exposure constitutes an

22

underlying cause of injury.” Krik v. Exxon Mobil Corp., 870 F.3d 669, 672 (7th Cir.

ORDER - 23

1

2017). A minor variation of the “every exposure” theory states that “every exposure to

2

asbestos above a threshold level is necessarily a substantial factor in the contraction of

3

asbestos-related diseases.” McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1177 (9th

4

Cir. 2016). A further outgrowth of the “every exposure” theory is the “cumulative

5

exposure” theory: the cumulative exposure to asbestos is the cause of the disease, but

6

because each exposure, no matter how small, adds to that cumulative exposure, each

7

exposure becomes a substantial contributing factor. See Krik, 870 F.3d at 672-73.

8

The court recently reviewed in detail the legal landscape surrounding the “every

9

exposure” and “cumulative exposure” theories.15 See Barabin v. Scapa Dryer Fabrics,

10

Inc., No. C07-1454JLR, 2018 WL 840147, at *11-16 (W.D. Wash. Feb. 12, 2018). After

11

surveying the relevant precedent—including McIndoe v. Huntington Ingalls Inc., 817

12

F.3d 1170 (9th Cir. 2016)—the court “agree[d] with t[he] overwhelming precedent that

13

the ‘every exposure’ theory is unreliable” because it “is not tied to the severity of

14

exposure,” is not based on sufficient supporting facts and data, cannot be tested, and does

15

not have a known error rate. See Barabin, 2018 WL 840147, at *11-12. The court

16

further concluded that the “cumulative exposure” theory is unreliable because it “contains

17

the same reliability problems that the ‘every exposure’ theory does”—namely that “every

18

exposure becomes a substantial factor based on one fact alone: that it was part of the

19

total dose.” Id. at *13.

20
As the court stated in Barabin, the “every exposure” theory goes by many names,
including the “any exposure” theory, the “single fiber” theory, and the “each and every
exposure” theory. See 2018 WL 840147, at *11 n.11 (citing Yates v. Ford Motor Co., 113 F.
Supp. 3d 841, 846 (E.D.N.C. 2015)).
15

21
22

ORDER - 24

1

The court reiterates its conclusion regarding the unreliability of the “every

2

exposure” and “cumulative exposure” theories. Neither theory addresses the frequency

3

of, regularity of, proximity to, or the strength of the exposure in question; indeed, neither

4

theory depends on any characteristic of the exposure at all. Instead, the fact that the

5

exposure occurs is sufficient under either theory to qualify that exposure as a substantial

6

factor. Allowing these theories to be presented at trial would, as the Ninth Circuit

7

articulated, “undermine the substantial factor standard” and allow “unbounded liability.”

8

McIndoe, 817 F.3d at 1177.

9

Having concluded that neither the “every exposure” nor the “cumulative

10

exposure” theory is admissible under Rule 702 and the Daubert standard, the court now

11

ascertains whether any of the challenged causation experts rely on those theories.

12

2. Ronald Gordon

13

DCo, Ford, and Ingersoll Rand challenge the admissibility of Dr. Gordon’s

14

testimony regarding his microscopic testing of Mr. Jack’s lung and lymph node tissues.

15

(See DCo MTE Gordon; Ford MTE Gordon; Warren Pumps MTE at 3-7.) They raise

16

three main arguments: (1) Dr. Gordon relies on the impermissible “every exposure”

17

theory (Ford MTE Gordon at 9-10; Warren Pumps MTE at 3-7); (2) Dr. Gordon,

18

although qualified to give opinions regarding microscopy, is not qualified to opine on the

19

source of the detected fibers (DCo MTE Gordon at 8; Ford MTE Gordon at 10-11); and

20

(3) Dr. Gordon’s focus on lymph nodes is unreliable (Ford MTE Gordon at 7-9).16

21
DCo additionally argues that a portion of Dr. Gordon’s deposition testimony is an
untimely opinion precluded by Federal Rule of Civil Procedure 37(c). (DCo MTE Gordon at
16

22

ORDER - 25

The first argument is now moot because Plaintiffs clarify that Dr. Gordon “will not

1
2

be offering an opinion in this case that ‘each and every exposure’ to asbestos causes

3

mesothelioma or that ‘each and every exposure’ to asbestos caused [Mr.] Jack’s

4

mesothelioma.” (Gordon Resp. at 12.) Instead, he will focus on his “microscopy

5

findings” and “the significance of those findings in evaluating [Mr.] Jack’s exposure.”

6

(Id.; see id. at 1 (offering Dr. Gordon to “opine as to [Mr. Jack’s] exposure to asbestos”).)

7

Thus, the court declines to exclude Dr. Gordon on this ground.17 Defendants may renew

8

this objection, however, if Dr. Gordon proffers causation testimony during trial.

9

The court addresses the remaining arguments in turn.
a. Dr. Gordon’s Qualifications

10

No party challenges Dr. Gordon’s qualifications in microscopy or his credentials

11
12

to testify about the fiber burden study that he performed on Mr. Jack’s lung and lymph

13

node tissue. (See DCo MTE Gordon at 8; Ford MTE Gordon at 10-11.) Instead, they

14

question Dr. Gordon’s qualifications to opine on the source of those fibers, and in

15

particular, whether the fibers may have originated from automotive products. (See id.)

16

//

17
18
19
20
21

6-8.) But Dr. Gordon gave the testimony at issue in response to a hypothetical posed by
Plaintiffs’ counsel, in which Plaintiff’s counsel informed Dr. Gordon of Mr. Fitzgerald’s findings
regarding the asbestos content of automotive products. (Gordon Dep. at 140:14-141:8.) A
hypothetical is generally allowed as long as there is a reasonable basis for the facts posed by the
hypothetical. Woods v. Conagra Foods Lamb Weston, Inc., No. 4:15-cv-05067-SAB, 2016 WL
4719886, at *4 (E.D. Wash. June 3, 2016). The court finds no reason to doubt the facts posed by
Plaintiffs’ counsel’s hypothetical. Thus, the court declines to exclude the testimony as an
untimely supplemental report under Rule 37(c).
Because Dr. Gordon will not be testifying to causation, Ford’s argument that he is not
qualified to render causation opinions is also moot. (See Ford MTE Gordon at 10.)
17

22

ORDER - 26

1

Although Dr. Gordon is a microscopist, his experience is not limited to that role.

2

Instead, he has participated in studies of the asbestos content of various products. (See

3

Gordon Adams Decl. ¶ 2, Ex. N (attaching an article co-authored by Dr. Gordon that

4

analyzes the asbestos concentration of talcum powder).) More significantly, Dr. Gordon

5

analyzed automotive parts in particular. For instance, he has “looked at a number of

6

cases of people that have been exposed to brake dust as mechanics” and additionally

7

analyzed “what fibers have been associated with . . . those brakes . . . and correlated them

8

with the exposures.” (Gordon Dep. at 15:23-16:2.) In fact, Dr. Gordon conducted

9

studies on brakes and clutches to determine whether they correlated to fibers found in the

10

patient. (Id. at 16:7-14.) Moreover, Dr. Gordon has reviewed literature on the asbestos

11

content in automotive products. (See id. at 17:13-23.)

12

True, Dr. Gordon has not conducted any fiber release studies to measure the

13

exposure levels that automotive products produce, nor is he aware of the manufacturer of

14

the brakes. (Id. at 16:11-18, 17:4-6.) But Dr. Gordon does not opine on the fibers/cc

15

level of exposure from automotive products or identify any specific brand. (See Gordon

16

Rep.; Gordon Dep. at 139:20-140:13.) Instead, he opines on whether the fibers could

17

have originated from automotive products based on his experience studying such

18

products. (See id.) Dr. Gordon’s experience with automotive products enables him to

19

draw links between Mr. Jack’s fiber burden study and automotive products generally.

20

b. Lymph Node Study

21

Ford challenges the reliability of Dr. Gordon’s fiber burden study of Mr. Jack’s

22

lymph nodes, arguing that there is no correlation between fibers found in lymph nodes

ORDER - 27

1

and occupational exposure to asbestos. (Ford MTE Gordon at 7-9.) Thus, Ford seeks to

2

exclude “Dr. Gordon’s lymph node fiber burden analysis . . . as lacking foundation in

3

reliable, peer-reviewed science.” (Id. at 9.) The court disagrees.

4

Expert testimony may be admitted when the knowledge in the field “permits the

5

assertion of a reasonable opinion.” United States v. Sandoval-Mendoza, 472 F.3d 645,

6

655 (9th Cir. 2006) (internal quotation marks omitted) (quoting United States v. Finley,

7

301 F.3d 1000, 1007 (9th Cir. 2002)). “A court may admit somewhat questionable

8

testimony if it falls within ‘the range where experts might reasonably differ, and where

9

the jury must decide among the conflicting views.’”18 S.M. v. J.K., 262 F.3d 914, 921

10

(9th Cir. 2001) (quoting Kumho Tire, 526 U.S. at 153). Here, Dr. Gordon’s extrapolation

11

of Mr. Jack’s exposure, based on the presence of fibers in Mr. Jack’s lymph node tissue,

12

is reasonable, even if experts might reasonably differ about that extrapolation.

13

Various published studies support the notion that asbestos fibers can deposit in the

14

lymph nodes after the fibers leave the lungs. For example, the report on the Helskini

15

criteria states that asbestos bodies, which are “the hallmark of asbestos exposure,” are

16

“deposited in the lung parenchyma” but “may also be found in regional lymph nodes.”

17

(Gordon Adams Decl. ¶ 2, Ex. J at 127.) Several publications by Ronald Dodson also

18

correlate asbestos fibers in lymph node tissue with exposure. Dr. Dodson’s book

19

Asbestos Risk Assessment, Epidemiology, and Health Effects explains that because lymph

20

//

21
22

18

Ford questions the applicability of this authority because it predates Estate of Barabin.
(Gordon Reply (Dkt. # 593) at 3.) But Estate of Barabin did not address, let alone overrule, this
statement of law. See 740 F.3d at 464.

ORDER - 28

1

nodes are the “reservoirs of retained material,” the ability of fibers to “relocate through

2

the lymphatic system to the . . . lymph nodes is well recognized.” (Id. ¶ 2, Ex. L at 74.)

3

A comparative study performed by Dr. Dodson on eight shipyard workers revealed that

4

all but one had asbestos bodies in their lymph node tissue, suggesting “a relocation of

5

mature bodies from the lungs to the lymph nodes.” (Id. at 75.)

6

Indeed, Dr. Gordon has also published an article detailing the correlation of

7

asbestos exposure with fibers found in the lymph nodes. (See Gordon Adams Decl. ¶ 2,

8

Ex. N.) When studying a patient exposed to asbestos through talcum powder, Dr. Gordon

9

performed analysis on the lung and lymph node tissues. (Id. at 4-5.) He found asbestos

10

fibers in both locations. (Id. at 7-9.) The study “tracked the asbestos in the talc . . . into

11

the lung and lymph nodes of the users of those products.” (Id. at 13.) The above

12

literature persuades the court that there is a reasonable and reliable basis in science for

13

Dr. Gordon’s lymph node fiber burden analysis.

14

Ford provides its own expert testimony disclaiming lymph node fiber burden

15

analyses; its pathologist Andrew Churg even characterizes Dr. Gordon’s conclusions as

16

“completely illegitimate.” (Ford MTE Gordon, Ex. 3 at 1; id., Ex. 4 at 55:11.) But Dr.

17

Churg’s disagreement with Dr. Gordon’s conclusion only illustrates that this is an area

18

about which reasonable experts may disagree. In such a situation, the jury—not the

19

court—must decide amongst the conflicting views. See S.M., 262 F.3d at 921; see also

20

Marketquest Grp., Inc. v. BIC Corp., No. 11-cv-618-BAS (JLB), 2018 WL 1756117, at

21

*4 (S.D. Cal. Apr. 12, 2018) (leaving the determination of “which of several competing

22

scientific theories has the best provenance” to the jury).

ORDER - 29

1
2

Because the court finds that Dr. Gordon is sufficiently qualified and relies on a
sufficient foundation, the court concludes that his testimony is admissible.

3

3. Carl Brodkin

4

Honeywell challenges the reliability of Dr. Brodkin’s testimony regarding brake

5

dust, whereas Borg-Warner focuses on his conclusions regarding clutches.19 The court

6

therefore addresses the two categories of arguments.

7

a. Brake Dust

8

Honeywell generally challenges the reliability of Dr. Brodkin’s causation

9

opinions. First, it points out that Dr. Brodkin does not determine Mr. Jack’s cumulative

10

dose, and thus, Dr. Brodkin “simply concludes that because there is not a known

11

threshold for safe exposure, no exposure . . . is safe.” (Honeywell MTE Brodkin at 10.)

12

Thus, Honeywell seemingly argues that Dr. Brodkin relies on the “every exposure”

13

theory. (See id. (noting that Dr. Brodkin qualifies “exposure to any identified (but

14

unquantified) level of fiber release . . . [to be] biologically significant in the development

15

of [Mr. Jack’s] disease”); see also Warren Pumps MTE at 3-7.)

16

But Dr. Brodkin’s causation conclusions are not based on the theory that every

17

exposure must necessarily be a substantial factor. Instead, he looks for an “identified

18

//

19
20
21
22

DCo also brought a motion challenging Dr. Brodkin’s testimony. (See DCo MTE
Brodkin.) However, DCo’s motion largely mirrors Honeywell’s motion, with the caveat that
DCo challenges Dr. Brodkin’s conclusions concerning automotive gaskets rather than brake dust.
(See id. at 2-3.) Thus, the court addresses DCo’s motion in conjunction with Honeywell’s
motion. Ingersoll Rand, which joined in former Defendant Warren Pumps’s motion, argues Dr.
Brodkin relies on the inadmissible “every exposure” theory. (See Warren Pumps MTE at 3-8.)
Because this argument overlaps with Honeywell’s, the court addresses them together.
19

ORDER - 30

1

exposure,” which requires a “well-characterized source, activity that generates fibers

2

overcoming the body’s defenses, and add[s] to the body[’s] burden of asbestos.”

3

(Brodkin Dep. at 195:19-25.) An “identified exposure” must be a “well-characterized

4

source of asbestos, an activity that disrupts the source to generate significant airborne

5

asbestos fibers that have sufficient intensity to overcome the body’s defenses, add to the

6

body’s burden of asbestos, and therefore, increase risk for asbestos-related diseases.” (Id.

7

at 46:25-47:7.) In other words, Dr. Brodkin analyzes the duration, frequency, and

8

intensity of exposures to determine whether an exposure is significant. (Id. at

9

193:15-19.) Indeed, Dr. Brodkin’s report belies Honeywell’s contention that he

10

subscribes to the “every exposure” theory. For instance, Dr. Brodkin recognizes that Mr.

11

Jack was exposed to asbestos fibers when installing and handling clutches but did not

12

characterize those exposures as identified exposures. (Brodkin Rep. at 2.15.)

13

Honeywell next challenges Dr. Brodkin’s identified exposure approach as

14

unreliable. The court again disagrees. Dr. Brodkin analyzed Mr. Jack’s occupational and

15

environmental history at length—including during an interview with Mr. Jack—and

16

compared Mr. Jack’s activities to the exposure associated with those activities

17

documented in numerous published studies. (See Brodkin Rep. at 5.4.) He additionally

18

factored in the asbestos content of the materials, how often Mr. Jack worked with those

19

materials, how long he did that work, and where he worked with the materials. (See id.)

20

Dr. Brodkin relies on his significant experience compiling and analyzing occupational

21

histories to then determine which of the exposures qualify as identified exposures. (See

22

generally Brodkin CV.) Thus, Dr. Brodkin’s characterization of Mr. Jack’s identified

ORDER - 31

1

exposures has “a ‘reliable basis in the knowledge and experience of the relevant

2

discipline.’” See Estate of Barabin, 740 F.3d at 463.

3

Dr. Brodkin further relies on the Helsinki criteria, a document created by a group

4

of 19 experts from around the world to clarify how to diagnose and attribute

5

asbestos-related diseases. (See Brodkin Adams Decl. ¶ 2, Ex. 4.) The Helsinki criteria

6

notes that “a history of significant occupational, domestic, or environmental exposure to

7

asbestos will suffice for attribution” and that even an “occupational history of brief or

8

low-level exposure should be considered sufficient for mesothelioma to be designated as

9

occupationally related.” (Id. at 313.) And finally, Dr. Brodkin references various

10

published articles, government agency statements, and industry textbooks that support

11

how he pinpoints identified exposures. (See Brodkin Dep. at 46:25-47:7.) In light of

12

those publications, the court is further persuaded that Dr. Brodkin’s methodology is

13

reliable and thus admissible.

14

Honeywell makes much of the fact that Dr. Brodkin does not quantify Mr. Jack’s

15

exposure. (See Honeywell MTE Brodkin at 9-10; Brodkin Reply (Dkt. # 594) at 2-3.)

16

But Dr. Brodkin explained that direct quantification is difficult because no equipment

17

measured Mr. Jack’s real-time exposure, and retroactively estimating his exposure

18

involves a “wide range of uncertainty.” (Brodkin Dep. at 40:17-41:13.) Nor is

19

quantification necessary legally. See Mavroudis v. Pittsburgh-Corning Corp., 935 P.2d

20

684, 687 (Wash. Ct. App. 1997) (requiring only that a substantial factor be “important,”

21

“material,” and not “insignificant”); see also Barabin v. Scapa Dryer Fabrics Inc., No.

22

C07-1454JLR, Dkt. # 248, at 6 (“[T]he [c]ourt finds that the substantial factor causation

ORDER - 32

1

standard is a qualitative one that does not require hard and fast numerical absolutes

2

tracing each defendant’s asbestos fibers to the plaintiff’s lungs.”). Thus, the court

3

declines to exclude Dr. Brodkin’s testimony on account of his qualitative analysis.

4

Lastly, Honeywell and DCo dispute whether brake dust or gaskets increase the

5

risk of mesothelioma. (Honeywell MTE Brodkin at 11; DCo MTE Brodkin at 2-3.) In so

6

arguing, both defendants point to studies or expert testimony that disagree with Dr.

7

Brodkin’s cited studies. (See Honeywell MTE Brodkin at 2-4, 11; DCo. MTE Brodkin at

8

2-3.) But the court cannot rule on the correctness of Dr. Brodkin’s conclusions. See

9

Estate of Barabin, 740 F.3d at 463. And there is nothing to indicate that the four pages of

10

published studies Dr. Brodkin relies upon utilize unsound methodology. (See Brodkin

11

Rep. at 6.12-15.)

12

Honeywell and DCo’s contrary studies may well influence the weight a jury

13

assigns to Dr. Brodkin’s testimony, but they do not warrant exclusion. See PacTool Int’l,

14

Ltd. v. Kett Tool Co., Inc., No. C06-5367BHS, 2012 WL 3637391, at *3 (W.D. Wash.

15

Aug. 22, 2012) (declining to exclude contradicting expert testimonies because “these

16

issues are best left to the factfinder to weigh during the battle of the experts”). Instead,

17

they merely highlight an area that reasonable experts may disagree about; it is not the

18

court’s role to “determine which of several competing scientific theories has the best

19

provenance.” Marketquest Grp., 2018 WL 1756117, at *4 (quoting Ruiz-Troche v. Pepsi

20

Cola, 161 F.3d 77, 85 (1st Cir. 1998)) (internal quotation marks omitted).

21

//

22

//

ORDER - 33

1

In summary, the court concludes that Dr. Brodkin’s testimony passes muster under

2

Rule 702 and the Daubert standard. Accordingly, the court denies Honeywell and DCo’s

3

motions to exclude.20

4

b. Clutches

5

Borg-Warner raises two separate arguments: (1) Dr. Brodkin’s causation

6

testimony regarding clutches is not based on the facts of this case (Borg-Warner MTE

7

Brodkin at 7-9); and (2) Dr. Brodkin’s two underlying studies on clutches are unreliable

8

(id. at 9-10).21 Neither ground warrants exclusion.

9

First, Borg-Warner’s argument regarding the underlying facts go to the weight and

10

not the admissibility of Dr. Brodkin’s testimony. Dr. Brodkin documents that Mr. Jack

11

reported working with “lots” of Borg-Warner clutches from 1955 to 1986, including

12

several clutch bell housing removal-blowouts, removals of clutches, and repeat clutch

13

jobs. (Brodkin Rep. at 2.14.) Mr. Jack also performed clutch replacements, which

14

required disassembly of the clutch bell-housing part. (Id. at 2.13.) During this clutch

15

work, Mr. Jack recalled using compressed air to blow out the clutch bell housings, which

16

generated visibly dusty conditions. (Id.) Mr. Jack’s work with clutches—in combination

17
To the extent that Ingersoll Rand joins in Warren Pumps’s product-specific
argument—that Dr. Brodkin failed to analyze pumps (Warren Pumps MTE at 7-8)—the court
concludes that this argument is unavailing. Ingersoll Rand, to state the obvious, did not produce
pumps. And Dr. Brodkin explicitly references Ingersoll Rand compressors as products that Mr.
Jack worked with. (See, e.g., Brodkin Rep. at 2.5-6.) Thus, Dr. Brodkin did not fail to address
Ingersoll Rand compressors. (Id. at 5.2.)
20

18
19
20

Borg-Warner additionally argues that Dr. Brodkin’s methodology is unreliable because
he does not conclude “what number of clutch removals is a substantial contributing factor to
mesothelioma.” (Borg-Warner MTE Brodkin at 10.) The court rejects this argument for the
same reasons it rejected Honeywell’s quantification argument. See supra § III.B.3.a.
21

21
22

ORDER - 34

1

with the high asbestos content of clutches and the level of exposure such activities

2

generate—constitute a sufficient factual basis for Dr. Brodkin’s conclusion that Mr.

3

Jack’s work with clutches constitutes an identified exposure. Thus, Borg-Warner’s

4

disagreements over the factual basis of Dr. Brodkin’s opinions do not make his report so

5

fundamentally flawed that it could not assist the jury on the issue of causation. See

6

Marketquest Grp., 2018 WL 1756117, at *3.

7

Borg-Warner’s qualms with two of Dr. Brodkin’s cited studies also do not warrant

8

exclusion. Borg-Warner challenges a 1987 study conducted by Timo Kauppinen and

9

Kari Korhonen (“Kauppinen Study”) and a 1970 study conducted by D.E. Hickish and

10

K.L. Knight (“Hickish Study”). (Borg-Warner MTE Brodkin at 9-10.) At the outset, the

11

court observes that Dr. Brodkin also relied on other studies involving clutches. (See

12

Brodkin Rep. at 6.12-15.) Even though not all of the studies involve Borg-Warner

13

clutches, the studies remain relevant to Dr. Brodkin’s overall analysis of exposure from

14

clutches. Thus, Borg-Warner is incorrect that without those two studies, Dr. Brodkin

15

lacks scientific support for his conclusions. (See Borg-Warner MTE Brodkin at 9-10.)

16

Turning to the studies, the court agrees with Borg-Warner that the Hickish Study

17

does not measure exposure from working with clutches. Instead, as Borg-Warner argues,

18

the study measures break work exposure from the position of someone performing clutch

19

repair work in an adjacent bay. (See Brodkin Ross Decl. ¶ 5, Ex. E (“Hickish Study”) at

20

18.) But the Kauppinen Study does explicitly measure the fiber release during “clutch

21

repair.” (Id. ¶ 4, Ex. D (“Kauppinen Study”) at 500-03.) The Kauppinen Study,

22

combined with the other studies on clutches, constitute a sufficient scientific basis for Dr.

ORDER - 35

1

Brodkin’s conclusion. Borg-Warner’s remaining concerns, such as whether “clutch

2

repair” sufficiently mirrors the work Mr. Jack performed, do not undermine the reliability

3

of the underlying study and can be addressed on cross examination.

4
5

Accordingly, the court denies Borg-Warner’s motion to exclude Dr. Brodkin’s
causation testimony regarding clutches.

6

4. Arnold Brody

7

Honeywell and Ingersoll Rand assert that Dr. Brody’s causation testimony relies

8

on the “every exposure” theory. (Honeywell MTE Brody at 1-4; Warren Pumps MTE at

9

6.) Plaintiffs respond that Dr. Brody will testify only on “matters of general causation”

10

such as “how asbestos fibers move through the body . . . and cause disease on a cellular

11

level,” and that Dr. Brody “will not offer any case-specific testimony about [Mr.] Jack.”

12

(Brody Resp. at 1-2.) Thus, Plaintiffs maintain that Dr. Brody “will not attribute Mr.

13

Jack’s disease to ‘every exposure’ he had to asbestos.” (Id. at 2.) The court agrees with

14

Plaintiffs that, subject to those limitations, Dr. Brody’s testimony is admissible.

15

First, the court notes that the bulk of Dr. Brody’s proffered testimony—which

16

explains what asbestos is and how it affects the body on a cellular level—goes

17

unchallenged. (See Brody Rep. ¶¶ 7-43.) Instead, Honeywell and Ingersoll Rand take

18

issue with statements in two paragraphs of Dr. Brody’s report: (1) that “science has not

19

identified an exposure to asbestos above background that does not induce mesothelioma”;

20

and (2) that “every exposure to asbestos contribute[s] to [an individual’s] cumulative

21

dose.” (Honeywell MTE Brody at 2-3 (quoting Brody Dep. at 29:20-22, 34:13-15); see

22

also Warren Pumps MTE at 6; Brody Rep. ¶¶ 44-45.)

ORDER - 36

1

Neither of these statements run afoul of Daubert because they are general

2

statements of the science behind asbestos-related disease. (See Brody Rep. ¶¶ 44-45.)

3

The fact that every exposure adds to the total dose is an “irrefutable scientific fact,” and it

4

is “well-established” that the threshold level for developing mesothelioma is unknown.

5

See Rost v. Ford Motor Co., 151 A.3d 1032, 1045 (Pa. 2016). These “irrefutable

6

scientific fact[s]” do not answer the legal question of whether particular exposures to

7

asbestos are substantial factors. See id. Put another way, even an exposure that increases

8

the risk of mesothelioma may fail to constitute a substantial factor.22 See Mavroudis, 935

9

P.2d at 687. When concluding that the “every exposure” theory is inadmissible, it is not

10

this court’s intention “to preclude expert witnesses from informing juries about certain

11

fundamental scientific facts . . . even if those facts do not themselves establish legal

12

(substantial factor) causation.” See Rost, 151 A.3d at 1045.

13

Second, Dr. Brody does not make the inferential leap that is troublesome in the

14

“every exposure” or “cumulative exposure” theories—that is, he does not opine that

15

because an exposure occurred and necessarily adds to the total dose, that single exposure

16

must be a substantial cause. In fact, Dr. Brody stops short of offering any conclusion

17

about the specific exposures Mr. Jack may have endured. (See Brody Rep. ¶¶ 44-45.)

18

//

19
20
21
22

In conflating Dr. Brody’s review of the literature with the “every exposure” theory,
Honeywell skips over this distinction. (See Brody Reply (Dkt. # 585) at 2-4.) The court
acknowledges that Dr. Brody’s testimony regarding the failure to locate a safe level of exposure
touches on the “every exposure” theory. However, the court recognizes a fine line between any
increase of risk and one that is important, material, and not insignificant, as is required to qualify
as a substantial factor. See Mavroudis, 935 P.2d at 687. Honeywell and Ingersoll Rand may
renew their objections should Dr. Brody cross that line at trial.
22

ORDER - 37

1

Given this limitation, the court allows Dr. Brody’s testimony to the extent that Dr. Brody

2

expresses no opinion on Mr. Jack’s individual exposures and whether those exposures

3

constitute substantial factors. Accordingly, the court denies Honeywell and Ingersoll

4

Rand’s motion to exclude Dr. Brody’s expert testimony.

5

D.

Barry Castleman
Ford, Ingersoll Rand, and DCo challenge Dr. Castleman’s historical overview of

6
7

asbestos literature and his conclusion of when asbestos hazards became well-known.

8

Their arguments center on two contentions: (1) Dr. Castleman is not qualified to opine

9

on medical and scientific literature; and (2) Dr. Castleman, without the proper

10

qualifications, can only speculate as to the knowledge defendants had at any given time.23

11

(See Ford MTE Castleman at 4-6; Warren Pumps MTE at 14-17.)

12

In response, Plaintiffs clarify the scope of Dr. Castleman’s testimony. Dr.

13

Castleman will provide “historical information regarding the state-of-the-art knowledge

14

of asbestos and asbestos-related diseases, which . . . is relevant to what Defendants knew

15

or should have known about asbestos and its hazards.” (Castleman Resp. at 1.) Dr.

16

//

17
18
19
20
21
22

23

Ford additionally argues that Dr. Castleman should be precluded from testifying about
the content of any article he reviewed because the underlying articles constitute impermissible
hearsay. (Ford MTE Castleman at 6.) However, the court notes that pursuant to Rule 703, an
expert may disclose otherwise inadmissible underlying facts or data “if their probative value in
helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” Fed. R.
Evid. 703. Thus, Rule 703 “permits . . . hearsay, or other inadmissible evidence, upon which an
expert properly relies, to be admitted to explain the basis of the expert’s opinion . . . for the
limited purpose of explaining the basis for his expert opinion but not as general proof of the truth
of the underlying matter.” Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1261-62 (9th Cir.
1984) (internal citations omitted). Plaintiffs acknowledge that none of the articles underlying Dr.
Castleman’s opinion will be admitted for the truth of the matter. (Castleman Resp. at 11-12.)
Thus, the court declines to issue a blanket exclusion of all underlying studies.

ORDER - 38

1

Castleman will not testify on whether the asbestos literature was in fact correct (id. at 6

2

n.4) or “what any particular [d]efendant knew or should have known at any given time

3

regarding asbestos” (id. at 10).

4

Given these limitations, the court concludes that Dr. Castleman’s testimony is

5

admissible under Rule 702 and Daubert. In fact, with those limitations, there is little

6

dispute regarding Dr. Castleman’s qualifications. The parties agree that Dr. Castleman is

7

qualified to testify about the historic availability of literature on asbestos and the

8

development of that literature. (See Ford MTE Castleman at 4 (acknowledging that Dr.

9

Castleman is “certainly qualified to testify as to the existence of articles that discuss the

10

relationship between asbestos dust and mesothelioma”); Warren Pumps MTE at 15

11

(same); Castleman Resp. at 1.) The parties additionally agree that Dr. Castleman is not

12

qualified to judge the correctness of the medical literature. (Ford MTE Castleman at 4-5;

13

Warren Pumps MTE at 16; Castleman Resp. at 6 n.4.) And lastly, the parties agree that

14

Dr. Castleman does not know what any particular defendant knew about the hazards of

15

asbestos. (Ford MTE Castleman at 5; Warren Pumps MTE at 15; Castleman Resp. at 10.)

16

Dr. Castleman is undoubtedly qualified to testify about the historical development

17

of knowledge regarding the health hazards of asbestos. He has significant experience in

18

researching the state of the art for asbestos from a historical perspective—indeed, his

19

thesis, now a book in its fifth edition, focuses entirely on that topic. (See Castleman Rep.

20

at 1.) Several courts considering Dr. Castleman’s qualifications have concluded that he

21

possesses “specialized knowledge” regarding the availability of asbestos literature, which

22

will “assist the jury in understanding the state of the art with respect to asbestos . . . given

ORDER - 39

1

the sheer volume of data available on this topic.” Krik v. Crane Co., 71 F. Supp. 3d 784,

2

787 (N.D. Ill. 2014); see also Waite v. All Acquisition Corp., 194 F. Supp. 3d 1298,

3

1310-11 (S.D. Fla. 2016) (concluding that Dr. Castleman satisfies the “relatively low

4

burden” of being qualified to testify). The court reaches the same conclusion here.
Undeterred, Ford maintains that Plaintiffs’ limitations of Dr. Castleman’s

5
6

testimony renders it wholly irrelevant. (Castleman Reply (Dkt. # 591) at 1-2 (asking

7

“why is [Dr. Castleman] going to take up the jury’s time”).) Although Dr. Castleman

8

will not testify to what any specific defendant knew, his testimony is nonetheless relevant

9

for several reasons. First, Dr. Castleman’s research “can serve the purpose of providing

10

context and grounding scientific information integral to the determination of this case.”

11

Waite, 194 F. Supp. 3d at 1311. Second, under Washington law, “evidence of historical,

12

medical, and scientific knowledge about the dangers of asbestos . . . may be considered

13

by the trier of fact” on both strict liability and negligence claims. Crittenden v.

14

Fibreboard Corp., 794 P.2d 554, 559 (Wash. Ct. App. 1990). Because Plaintiffs bring

15

both negligence and strict liability claims (see SAC ¶¶ 49-50), Dr. Castleman’s testimony

16

assists the jury in determining what any defendant knew or should have known based on

17

the available literature, see Crittenden, 794 P.2d at 559.

18

Because the court finds Dr. Castleman qualified to testify within the limitations set

19

by Plaintiffs, and because the court further finds that testimony to be relevant, the court

20

denies Ford, Ingersoll Rand, and DCo’s motions to exclude Dr. Castleman’s testimony.

21

//

22

//

ORDER - 40

1

E.

Charles Cushing
Ford moves to exclude Dr. Cushing’s statements regarding Mr. Jack’s “likely

2
3

expos[ure]” to asbestos during automotive work. (MTE Cushing at 1-2.) Ford

4

emphasizes that Dr. Cushing is a naval architect with expertise in naval ships and

5

shipyards, not automobiles or the brakes, gaskets, and clutches used in automobiles. (Id.

6

at 4-5.) Thus, although Dr. Cushing is “plainly qualified to opine on the

7

asbestos-containing products that were likely present on the naval and marine vessels Mr.

8

Jack worked on,” Ford maintains that Dr. Cushing “is not qualified to render opinions

9

about the asbestos content of automotive products and asbestos exposure that might occur

10

during automotive repair work.” (Id. at 4.) The court agrees.
An expert must be “qualified . . . by knowledge, skill, experience, training, or

11
12

education” to render expert opinions. Fed. R. Evid. 702. Thus, an expert must be

13

qualified in the field they will testify about. See Lucido v. Nestle Purina Petcare Co.,

14

217 F. Supp. 3d 1098, 1103 (N.D. Cal. 2016) (concluding that an expert in one field is

15

not qualified to provide opinions about a different field). Dr. Cushing is undisputedly

16

qualified in the construction of naval ships and products that are used on those ships.

17

(See Cushing Rep. at 27.) However, he does not have any qualifications or experience

18

examining the inner workings of automobiles, the asbestos content of automobile

19

products, or what activities performed on those products would lead to asbestos exposure.

20

(See generally id.) Thus, the court concludes that Dr. Cushing is not qualified under Rule

21

702 to opine on Mr. Jack’s exposure to asbestos from his automotive work.

22

//

ORDER - 41

1

Viad does not contend otherwise. (See Cushing Resp.) Indeed, Viad seemingly

2

concedes that Dr. Cushing has no expertise in automobiles, arguing instead that “Dr.

3

Cushing’s opinion that Mr. Jack was exposed to asbestos from brakes is admissible . . . as

4

lay opinion” testimony. (Id. at 1.) Federal Rule of Evidence 701 allows lay testimony

5

that is rationally based on the witness’s perception, helpful to the trier of fact, and not

6

based on scientific, technical, or specialized information. See Fed. R. Evid. 701. In

7

Lucido, a veterinarian sought to provide opinions about what a reasonable consumer

8

would consider to be material when purchasing dog food. 217 F. Supp. 3d at 1103.

9

Although the veterinarian had no scientific, technical, or other specialized knowledge in

10

marketing or consumer purchasing behavior, the court concluded that the veterinarian

11

offered admissible lay testimony because she was drawing on particularized knowledge

12

she had by virtue of her position—namely, what her clients have indicated is important.

13

Id. Thus, although she was not an expert, she could testify based on her experience to

14

what her clients relayed. Id. at 1104.

15

Mr. Cushing has no analogous experience with automobiles. There is no

16

indication—and Viad provides no evidence—that Mr. Cushing has any experience with

17

automobile work, such that he bases the challenged portion of his testimony on his

18

perception or particularized knowledge. See id. at 1103-04. Moreover, asbestos

19

exposure is an issue that requires scientific, technical, and specialized knowledge, as

20

evidenced by the many experts in this case who opine on exposure. (See, e.g., Brodkin

21

Rep.) Because Mr. Cushing’s opinion on Mr. Jack’s exposure to asbestos from

22

//

ORDER - 42

1

automobile products is not rationally based on Mr. Cushing’s perception and requires

2

specialized knowledge, the court declines to admit it as a lay opinion.

3

In sum, pursuant to Rule 702, Mr. Cushing is not qualified as an expert to render

4

opinions about exposure during automotive work. See Fed. R. Evid. 702. The opinion is

5

additionally not a proper lay opinion pursuant to Rule 701. See Fed. R. Evid. 701.

6

Accordingly, the court grants Ford’s motion to exclude Mr. Cushing from testifying

7

about Mr. Jack’s asbestos exposure during automotive work.

8

F.

9

William Longo
Ingersall Rand and DCo make three main arguments to exclude Dr. Longo and the

10

MAS videos simulating the release of dust when working with brakes, gaskets, and

11

insulation: (1) the studies are irrelevant due to the use of Tyndall lighting (Warren

12

Pumps MTE at 9-10); (2) the studies are irrelevant because they are not substantially

13

similar to the conditions in which Mr. Jack worked with the products (id. at 10-12; Longo

14

Reply (Dkt. # 586) at 2-3); and (3) Dr. Longo utilized unreliable scientific methods to

15

measure exposure to asbestos (Warren Pumps MTE at 13-14). Plaintiffs respond that Dr.

16

Longo and the MAS studies are probative of Mr. Jack’s general exposure to asbestos and

17

rely on techniques that are “widely used by industrial hygienists and safety professionals

18

in asbestos monitoring.” (Longo Resp. at 2-12.) At this stage, during which the court is

19

considering only whether the studies are allowable under Rule 702 and Daubert, the court

20

agrees with Plaintiffs that the studies pass muster.24

21
24

22

Ingersoll Rand in its reply argues that the videos should be excluded under Rule 403
because any probative value is substantially outweighed by their prejudicial effect. (Longo

ORDER - 43

1

First, as to relevancy, the court reiterates that relevance in the Daubert context

2

simply requires that “the evidence will assist the trier of fact to understand or determine a

3

fact in issue.” Cooper, 510 F.3d at 942. That is, as long as the evidence “logically

4

advance[s] a material aspect of the party’s case,” that evidence is relevant. Id. Against

5

this standard, the court concludes that Dr. Longo and the MAS studies will assist the trier

6

of fact in understanding the issue of exposure. The video simulations depict the release

7

of particles from brakes, gaskets, and insulation—products that are at issue here—when a

8

person works with those products, as Mr. Jack did. Such evidence “logically advance[s]

9

a material aspect” of Plaintiffs’ case: When Mr. Jack worked with brakes, gaskets, and

10

insulation, the work created visible dust and released asbestos fibers into the air, a fact

11

that is foundational to establishing exposure. See id.; see Lockwood v. AC&S, Inc., 744

12

P.2d 605, 612 (Wash. 1987). The use of Tyndall lighting does not alter the relevancy of

13

those videos to the issue of exposure.
Ingersoll Rand and DCo are correct that tests must be conducted “under conditions

14
15

substantially similar to the actual conditions” under which Mr. Jack worked. See Lipson

16

v. ON Marine Servs. Co., LLC, No. C13-1747TSZ, 2013 WL 6536923, at *2 (W.D.

17

Wash. Dec. 13, 2013) (quoting Champeau v. Fruehauf Corp., 814 F.2d 1271, 1278 (8th

18

Cir. 1987)) (internal quotation marks omitted). However, “dissimilarities between testing

19

conditions and actual conditions ‘affect the weight of the evidence, not its admissibility.’”

20

//

21
22

Reply at 3-4); see Fed. R. Evid. 403. Such an argument is premature, and thus, the court does
not reach the Rule 403 issue. Ingersoll Rand may renew its argument in its motions in limine or
at trial.

ORDER - 44

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Id. (quoting Champeau, 814 F.2d at 1278). Thus, whether dissimilarity warrants

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exclusion depends on the degree of dissimilarity. See Barabin, 2018 WL 840147, at *9.

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For instance, in Krik v. Crane Co., the court excluded Dr. Longo’s studies because there

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was “no relationship between the Longo/[MAS] [v]ideos [and] the facts of [that] case.”

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71 F. Supp. 3d at 791. Because the studies had “nothing to do with [the plaintiff] at all,”

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there was an “insufficient ‘fit’ between the Longo/MAS Videos and the facts of [that]

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case to warrant their use at trial.” Id.

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But Plaintiffs proffer more than the plaintiff in Crane Co. did to illustrate fit. See
id. Specifically, Mr. Jack viewed the videos and testified that they depicted events

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similar to the work he performed. (Jack Dep. at 85:14-87:13.) For instance, Mr. Jack

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identified the brake product, the tools used, and the activities performed on the brakes in

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the video as similar to the work he did with brakes. (See id.) Mr. Jack also characterized

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the cleaning of gasket material off of a used valve as “fairly similar” to how he handled

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gaskets and valves. (Id. at 110:23-111:20.) Thus, unlike in Crane Co., there is some

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relationship between the videos and this case; thus, the court concludes that the studies

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are not so dissimilar that exclusion is warranted.25 See 71 F. Supp. 3d at 791; Barabin,

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2018 WL 840147, at *9. Ingersoll Rand and DCo’s concerns regarding the differences

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go to weight rather than admissibility. See Lipson, 2013 WL 6536923, at *2.

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//

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Ingersoll Rand and DCo point to other courts that have found the studies not
sufficiently similar. (Warren Pumps MTE at 11-12; Longo Reply at 5.) Although that precedent
is instructive, the court must consider the record before it. Mr. Jack’s deposition testimony
persuades the court that the degree of dissimilarity is not sufficient to warrant exclusion. (See
Jack Dep. at 85:14-87:13, 110:23-111:20.)

ORDER - 45

Lastly, the court finds that Dr. Longo’s methodology to measure the quantity of

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asbestos release is reliable. Defendants do not directly challenge the reliability of the

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PCM, TEM, or the Tyndall lighting methods that Dr. Longo utilizes to measure asbestos

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release. (See Warren Pumps MTE at 13-14.) Nor would such a challenge succeed, as

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those techniques are published, peer-reviewed, and standardized protocols that constitute

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well-established practices in the scientific community. (See Longo Aff. ¶¶ 5E, 6D.)

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For example, the PCM method is part of the NIOSH 7400 air sampling method,

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which is OSHA’s accepted method of analysis when evaluating occupational exposures.

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(See Longo Adams Decl. ¶ 2, Ex. 4 (attaching an OSHA letter interpreting the PCM

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method as part of the OSHA/NIOSH 7400 air sampling methodology for measuring

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asbestos fibers in gasket removal testing).) The EPA and the International Standards

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Organization (“ISO”) have published the TEM method, and Dr. Longo has additionally

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published the protocol in a peer-reviewed article. (See Longo Aff. ¶¶ 3, 5E; Longo

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Adams Decl. ¶ 2, Ex. 7.) Tyndall lighting is a technique used for many years by

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industrial hygienists to visualize the pathway of exposure; the EPA developed the

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technique as a standard testing method, and many published articles recognize the use of

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the technique.26 (See Longo Aff. ¶¶ 6A, 6D; see generally Longo Adams Decl. ¶ 2, Ex.

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//

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Although the court recognizes that Tyndall lighting is an accepted technique within the
scientific community such that it is reliable under Daubert standards, the court emphasizes that it
reaches no conclusion on the prejudicial effect, if any, of the technique. The court acknowledges
that many courts have excluded the videos because of its prejudicial effect. (See Morgan Decl.
(Dkt. # 475) ¶ 13, Ex. 11 (attaching order of exclusion because “the probative value of [the
videos] would be substantially outweighed by its prejudicial effect”).) The court does not
presently reach that issue. See supra n.24.

ORDER - 46

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7.) The court is persuaded that these published methodologies enjoy general acceptance

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within the relevant scientific community. See Daubert, 509 U.S. at 592-94; see also

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Lipson, 2013 WL 6536923, at *2 (qualifying Dr. Longo’s methodologies as reliable).

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Ingersoll Rand and DCo focus instead on two other courts that dismissed Dr.

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Longo’s studies as “junk science.” (Warren Pumps MTE at 13-14.) But neither case

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explains why the above methodologies are unreliable. In re Lamar County Asbestos

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Litigation acknowledged that the standards perpetuated by OSHA, EPA, and other

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agencies “provide reliable source evidence . . . in understanding generally accepted

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scientific methodologies” but nonetheless summarily concluded that “[t]he MAS tests

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constitute ‘junk science.’” (Morgan Decl. ¶ 9, Ex. 7 at 1.) In re Garlock Sealing Tech.,

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LLC did not address the PCM or TEM methods at all; instead, the court fixated on typos

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and other shortcomings in Dr. Longo’s expert report, the malfunctioning of Dr. Longo’s

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equipment, and Dr. Longo’s use of “tools above their safety ratings.”27 504 B.R. 71,

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79-80 (Bankr. W.D.N.C. 2014). No such facts are presented here. (See Warren Pumps

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MTE; Longo Reply.) Thus, based on the record before it, the court declines to exclude

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Dr. Longo’s studies as unreliable.

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Accordingly, the court denies Ingersoll Rand and DCo’s motion to exclude Dr.
Longo’s studies.

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In re Garlock Sealing Tech. characterizes Tyndall lighting as having “no scientific
purpose” but does not expound on why that method is unreliable in light of its recognition by
various government and professional entities. See 504 B.R. at 79. This conclusory statement is
insufficient for the court to discount the evidence presented by Plaintiffs that Tyndall lighting is
an accepted method utilized by industrial hygienists. (See Longo Aff. ¶¶ 6A-6E; Longo Adams
Decl. ¶ 2, Ex. 7 (publishing a study utilizing Tyndall lighting).)
27

ORDER - 47

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IV.

CONCLUSION

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For the foregoing reasons, the court GRANTS Ford’s motion to exclude Mr.

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Cushing’s testimony on automotive products (Dkt. # 464) and DENIES the other motions

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to exclude (Dkt. ## 456, 461, 463, 465, 470, 483, 490, 497, 511, 516). The court further

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DENIES Plaintiffs’ motion to extend the discovery deadline (Dkt. # 567) as moot.

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Dated this 10th day of August, 2018.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 48