Court Reverses Verdict Against Crane Co. and Remands as to Cigarette Defendants After Daubert Challenge Florida District Court of Appeal, Fourth District, September 14, 2016

Plaintiff Richard Delisle filed suit against multiple defendants alleging he developed mesothelioma as a result of exposure to sheet gaskets manufactured by Crane Co. and from the asbestos fibers from Micronite filters from smoking Kent cigarettes. The jury found both defendants’ products were a substantial contributing cause (SCC) of the development of Delisle’s mesothelioma. Both defendants unsuccessfully moved for directed verdicts and filed for appeal.

Crane Co. argued that the plaintiff’s expert, Dr. James Dahlgren should not have been permitted to testify as an expert under Daubert. R.J. Reynolds also brought a Daubert challenge of experts Drs. Millette, Crapo, and Rasmusson.

The court began its analysis with laying out the standard for expert qualifications. Florida adheres to the Daubert standard which states that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: 1) The testimony is based upon sufficient facts or data; 2) The testimony is the product of reliable principles and methods; and 3) The witness has applied the principles and methods reliably to the facts of the case. The role of the trial court is to act as a gatekeeper, excluding evidence unless it is reliable and relevant. Taking the expert’s word or own assertions for his or her opinion is not enough to pass the gatekeeper.

Dr. James Dahlgren: The court found that Dr. Dahlgren followed a two prong test to determine causation. First, he “looked at the ability of the substance to cause disease” and second “whether the particular individual had sufficient exposure to the substance to have that health effect.” The court also concluded that Dr. Dahlgren used the Bradford Hill criteria for determining causation. Dr. Dahlgren testified that both chrysotile and crocidolite asbestos can cause mesothelioma. On cross exam, he stated that both chrysotile and crocidolite were “probably” of the same potency. For his opinion, Dr. Dahlgren did not cite any results from animal studies. Further, he relied on another expert’s study but that study discussed crocidolite only. Finally, he conceded that many studies suggested that crocidolite asbestos was far more potent than chrysotile. More importantly, Dr. Dahlgren took the position that “every exposure” to asbestos above background is a SCC to the development of mesothelioma. The court found that the trial court abused its discretion in admitting Dr. Dahlgren as an expert. Specifically, Dr. Dahlgren had not explained his Bradford Hill methodology at all. Moreover, Dr. Dahlgren did not furnish any data or studies related to his assertion that chrysotile can cause mesothelioma in low doses. His assertions that “all types of asbestos” were of the same potency were nothing more than assumptions according to the court. Finally, the court noted that the opinion that every exposure to asbestos above background is a SCC has been rejected numerous times by courts. Dr. Dahlgren’s opinion was the only opinion on causation against Crane. Accordingly, the court ordered a directed verdict be entered in favor of Crane.

Dr. William Longo: Lorillard moved to exclude the opinions or testimony of Dr. Longo as unreliable. The plaintiff’s agreed that his testing would not be part of the case. However, despite this assurance his studies came up many times during trial.

Dr. James Millette: Dr. Millette had performed studies on Kent cigarettes and was offered as an expert in this matter. Dr. Millette described in detail the process by which he tested for asbestos fibers in the smoke of Kent cigarettes. The testing included outsourcing to a third party lab and was conducted under different “puff” amounts. Further, the filters were dissolved in an acid wash and run through a centrifuge. The detection levels for asbestos fibers were different based on the “puff” amounts. The court honed in on the fact that Dr. Millette had testified in depth about his methodologies. Accordingly, Dr. Millette’s testimony would stand.

Dr. James Crapo: The court also found that the trial court abused its discretion in admitting Dr. Crapo as an expert. Dr. Crapo was of the opinion that mesothelioma was not caused by exposure to chrysotile unless in high doses. Notably, Dr. Crapo opined that ”what I’m trying to tell you is putting crocidolite, a very, very dangerous fiber, into a filter and having a person put that in his mouth and suck on it,… that sounds very dangerous to me.” The court found his opinion unreliable and without foundation. However, the court hinted that he could have been admitted but more was needed to make a proper determination.

Dr. James Rasmuson: A Daubert challenge was brought as to Dr. James’s reliability as an expert. Specifically, Dr. Rasmuson opined that the plaintiff’s mesothelioma could be attributed to exposure to crocidolite from smoking the Kent cigarettes. His opinion was based solely on reliance upon Dr. Longo’s studies. He stated that Dr. Longo’s methodology “sounded” reasonable to him but conceded he did not know whether it was an acceptable methodology. The court found that he passed the first test of reliability and helpfulness to the jury on the issue of low-level exposure to crocidolite. However, the court found that his lack of knowledge as to whether Dr. Longo’s methodology was acceptable prevented him from offering opinion on the subject of exposure specific to Kent cigarettes. The case was remanded as to the two cigarette defendants.

Finally, the court also ordered a new trial on damages as the jury improperly relied on the fees of the plaintiff’s experts in its calculation of a verdict.

Read the full decision here.

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