SUOJA, DELORES AGNES v. OWENS-ILLINOIS, INC.

Filing 82

ORDER granting as unopposed 27 Motion to Bar the "Any Exposure" Causation Opinion; granting as unopposed 32 Motion to Bar the Longo/MAS Videotaped Experiments and Related Testimony; granting 40 Motion to Exclude Barry Castleman, Sc.D. with respect to testimony related to medical literature and denying with respect to testimony related to other historical documents discussed in Castleman's expert report. Signed by District Judge Barbara B. Crabb on 5/14/15. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - GARY SUOJA, individually and as
special administrator for the estate
of Oswald F. Suoja,
OPINION and ORDER
Plaintiff,
99-cv-475-bbc
v.
OWENS-ILLINOIS, INC.,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - BARBARA CONNELL, individually and
as special administrator for the estate of
Daniel Connell,
OPINION and ORDER
Plaintiff,
05-cv-219-bbc
v.
OWENS-ILLINOIS, INC.,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Three motions filed by defendant Owens-Illinois, Inc. and related to the admissibility
of expert testimony are before the court in these two asbestos cases. In the first motion,
defendant seeks to exclude an opinion by plaintiffs’ experts that “any exposure to asbestos,
no matter how slight, remote or insignificant, is a cause or substantial contributing factor in

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causing Plaintiffs’ diseases.” Defendant argues that the opinion is not “scientifically reliable”
and is therefore inadmissible under Fed. R. Evid. 702. In addition, defendant says that the
evidence is irrelevant and unfairly prejudicial. In the second motion, defendant seeks to
exclude evidence related to asbestos experiments conducted by William Longo. In addition
to arguing that the evidence is not admissible under Rule 702, defendant says that plaintiffs
did not disclose the evidence properly and that the evidence is both irrelevant and unfairly
prejudicial.

In the third motion, defendant seeks to exclude the opinions of Barry

Castleman, again on the ground that they are inadmissible under Rule 702.
The first question is which of these motions are still in dispute. In response to the
first motion, plaintiffs filed a two-page brief in which they stated that testimony that “‘any
exposure’ is a cause of the asbestos related disease will not be presented at trial.” In response
to the second motion, plaintiffs stated that they “agree to withdraw Dr. Longo as a witness.”
However, not willing to take “yes” for an answer, defendant continued to make arguments
about these motions in its reply briefs. Then both sides filed additional briefs about the “any
exposure” theory of causation and defendant expanded its argument regarding the evidence
that should be excluded. Because plaintiffs did not respond substantively to either of
defendant’s first two motions, I am granting them as undisputed. If defendant wants to
obtain additional rulings about the permissible scope of causation evidence, it will have to
file a timely motion in limine.
This leaves defendant’s motion to exclude testimony from Barry Castleman. Plaintiffs
have narrowed the issues by offering to limit Castleman’s testimony to the issues allowed in

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one of the cases that defendant cites in support of its motion, Krik v. Crane Co., No.
10-cv-7435, — F. Supp. 2d —, 2014 WL 5350463, *3 (N.D. Ill. Oct. 21, 2014):
Dr. Castleman will be permitted to testify as a “state of the art” expert to the
extent that he may describe the asbestos literature he has reviewed for the
relevant time period(s). Defendants, of course, may cross-examine Dr.
Castleman as necessary, including but not limited to questions regarding the
methodology he used to select the literature upon which he relies. For his part,
Krik may introduce documents produced by Defendants as exhibits during Dr.
Castleman's testimony, and Dr. Castleman may cite to and/or read the
documents aloud. But, to the extent that the documents upon which he relies
relate to subject areas in which Dr. Castleman has little or no demonstrated
expertise (such as medical literature), Dr. Castleman may not testify as to the
accuracy of the conclusions contained therein.
Plaintiffs say that the purpose of Castleman’s testimony is to “explain the historical
development of knowledge of the health hazards of asbestos as reported in thousands of
pieces of scientific literature, studies and professional or trade organizations documents.”
Plaintiffs refer to this as “state of the art” testimony, which they say is important in this case
because “[p]roof of what a defendant knew or should have known about the dangers of its
products is an element in any toxic tort case.” Plaintiffs say that Castleman is qualified to
give this testimony because of “his many years of training and experience as a practitioner
and researcher in the fields of public health, environmental engineering, and chemical
engineering, as well as several decades of research in the area of asbestos which began with
his doctoral thesis completed in 1985.”
In Krik, 2014 WL 5350463, at *3, the court concluded that Castleman “possesses
‘specialized knowledge’ regarding the literature relating to asbestos available during the
relevant time periods” and that Castleman’s testimony “could be useful to the jury as a ‘sort

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of anthology’ of the copious available literature.” In response, defendant cites cases in which
courts excluded or limited Castleman’s testimony. In Rutkowski v. Occidental Chemical
Corp., No. 83 C 2339, 1989 WL 32030 (N.D. Ill. Feb. 16, 1989), the court focused solely
on Castleman’s expertise to testify about medical articles, concluding that “Castleman lacks
the medical background and experience to evaluate and analyze the articles in order to
identify which parts of the articles best summarize the authors' conclusions.” Id. at *1. In
In re Related Asbestos Cases, 543 F. Supp. 1142, 1149 (N.D. Cal. 1982), the court focused
on medical articles as well, concluding that it was “not persuaded that Mr. Castleman, as a
layperson, possesses the expertise necessary to read complex, technical medical articles and
discern which portions of the articles would best summarize the authors' conclusions.”
I agree with defendant that plaintiffs have made no showing that Castleman is
qualified to explain the meaning and significance of medical literature. Further, there is no
suggestion in Krik that Castleman is qualified as an expert in that respect. To the extent
that plaintiffs want Castleman simply to read excerpts from medical articles, they do not
explain how doing so could be helpful to the jury. Accordingly, I am granting defendant’s
motion as it relates to Castleman’s discussion of the medical literature.
However, Castleman’s report also includes discussions of articles in trade journals and
government publications, which, presumably, would not require medical expertise to
understand or summarize. In Rutkowski and In re Asbsestos Cases, the courts limited their
holdings to plaintiff’s expertise on medical issues, so those cases are not instructive.
Defendant does not discuss specifically whether Castleman is qualified to testify about those

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other historical documents. Defendant argues more generally that Castleman is not a
“historian,” but it is undisputed that plaintiff has studied the historical development of
knowledge about asbestos for decades. Because a witness may qualify as an expert if he has
specialized “knowledge” or “education,” Fed. R. Evid. 702, I see no reason to exclude
Castleman simply because he does not have a history degree. Defendant also argues that
Castleman is biased, but that is an issue that can be tested on cross examination. At this
point, defendant has not shown that Castleman’s testimony should be excluded entirely.

ORDER
IT IS ORDERED that
1. Defendant Owens-Illinois, Inc.’s motion to exclude evidence that "any exposure
to asbestos, no matter how slight, remote or insignificant, is a cause or substantial
contributing factor in causing plaintiffs' diseases,” dkt. #27 (in case no. 99-cv-475-bbc) and
dkt. #26 (in case no. 05-cv-219-bbc), is GRANTED as unopposed.
2. Defendant’s motion to exclude evidence related to asbestos experiments conducted
by William Longo, dkt. #32 (in case no. 99-cv-475-bbc) and dkt. #31 (in case no. 05-cv219-bbc), is GRANTED as unopposed.
3. Defendant’s motion to exclude the testimony of Barry Castleman, dkt. #40 (in
case no. 99-cv-475-bbc) and dkt. #39 (in case no. 05-cv-219-bbc), is GRANTED with
respect to testimony related to medical literature. The motion is DENIED with respect to

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testimony related to other historical documents discussed in Castleman’s expert report.
Entered this 14th day of May, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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