Exclusion of Plaintiffs’ Causation Experts Leads to Granting of Summary Judgment United States District Court, D. Maryland, July 17, 2017
Plaintiffs filed suit against Georgia Pacific (“GP”) and Union Carbide Corporation (“UCC”) alleging Mr. Rockman’s peritoneal mesothelioma was caused by exposure to asbestos for which both Defendants were responsible. Specifically, Mr. Rockman claimed “bystander” exposure to GP’s Ready Mix joint compound that contained UCC’s Calidria chrysotile asbestos during residential renovations in 1965, 1973 and 1976. Plaintiff stated that he was exposed during his time living in a Brooklyn apartment when a ceiling was repaired in 1965, again in 1973 during wall repair in Baltimore, MD and finally during wall repair at a different Baltimore, MD residence in 1976.
The case was removed from the Circuit Court for Baltimore City by UCC. GP and UCC filed motions for summary judgment. GP also filed a motion to exclude causation opinions of Drs. Frank, Brody and Abraham. UCC filed a Daubert challenge regarding Calidria chrysotile or that “Each and Every” exposure to an asbestos product contributes to the development of peritoneal mesothelioma. At hearing, Plaintiffs conceded that they could not survive summary judgment should the court exclude their experts.
Drs. Frank and Abraham both opined that Plaintiff’s peritoneal mesothelioma was caused by the alleged exposure to chrysotile asbestos found in GP’s joint compound. Although Dr. Brody did not offer specific causation, he believed that “each and every” exposure cumulates and is therefore a cause of disease. The Court began its analysis with the standard to exclude expert testimony under Federal Rule 702 which provides: 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 a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to determine a fact in issue; b) the testimony is based on sufficient facts or data; c) the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case. The Court continued with the standard for summary judgment which provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The Court quickly honed in on Drs. Frank and Abraham’s reliance on several studies regarding high levels of work exposure to asbestos. However, Plaintiff had testified that he did not work with the joint compound but rather was a bystander and present only part of the time during the work. Drs. Frank and Abraham were not able to quantify Plaintiff’s exposure. Moreover, the experts had no citation to studies linking even small doses of chrysotile asbestos to the development of peritoneal mesothelioma. The Court also noted that chrysotile is a less potent fiber type of asbestos. The Court was troubled by what is characterized as “conflated data on pleural mesothelioma and amphibole asbestos with data on peritoneal mesothelioma and chrysotile asbestos. Drs. Frank and Abraham acknowledged that that peritoneal mesothelioma is usually associated with vast exposure over pleural mesothelioma. The Court also noted that the Yates opinion from a different jurisdiction excluded an expert where his causation opinion did not consider different types of asbestos. Like the expert in Yates, Drs. Frank and Abraham have not supported their causation findings on “sufficient facts” or “data” that is generally accepted in the scientific community. Accordingly, GP and UCC’s motions to exclude expert testimony were granted with respect to Drs. Frank and Abraham.
The Court also granted Defendants’ motions to exclude “each and every exposure” theory. All three Plaintiffs’ expert agreed that a Plaintiff’s cumulative exposure from each and every exposure is to be considered as a cause of the disease. The Court began its discussion noting that courts have repeatedly rejected the each and every exposure or cumulative theory, including those of Dr. Brody. Plaintiffs countered that several state courts have accepted the each and every exposure theory. However, those decisions were not based on the federal Daubert standard but rather under the state Frye-Reed test according to the Court. The Court therefore granted the motion to exclude the each and every exposure theory.
At this point, only the strict liability, negligence and loss of consortium claims remained against GP and UCC. Relying on its decision from the Sherin case, the issue of substantial factor is fact specific. Here, Mr. Rockman was a bystander and not a user of the product. Medical causation is to be considered within the standard for substantial factor according to the Court. Here, Plaintiffs’ experts have already been excluded. Finally, the Court stated that GP was under no duty to warn for pre 1972 exposures as it had no way to warn a bystander.
Consequently, Plaintiffs’ experts were excluded and summary judgment was entered in favor of GP and UCC.