Exclusion of the Plaintiff’s Causation Experts Leads to Grant of Summary Judgment in Merchant Marine Mesothelioma Matter U.S.District Court, E.D. Louisiana, February 05, 2019
LOUISIANA — The plaintiff filed suit against multiple defendants alleging he developed mesothelioma while working for Radcliff Materials, a predecessor of Dravo Basic Materials Company (DBMC). Prior to filing suit in Louisiana, The plaintiff had filed a products liability suit against several defendants in California including DBMC. The plaintiff dismissed DBMC from the California suit based on jurisdictional issues. The plaintiff worked as an oiler onboard a dredge known as the Avocet in 1973 for approximately 6 weeks. His primary job duties included reading gauges, changing oil filters and making minor repairs.
The plaintiffs relied upon Drs. Robert Harrison and David Tarin as experts to support their claims against DBMC. Both experts planned to testify that the plaintiff’s alleged exposure onboard the Avocet was the general and specific cause of the plaintiff’s mesothelioma. DBMC moved to preclude their testimony. DBMC also moved for summary judgment.
The court reminded the standard for admissibility of expert testimony. An expert may provide an opinion when “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Specifically, the court in the Daubert matter held that scientific testimony must be not only relevant but reliable. The evidence must also fit the facts of the instant case and assist the trier of fact to understand it. As for summary judgment, the court noted that summary judgment is appropriate where there is no genuine issue as to material fact.
Dr. Harrison-The court stated that the plaintiff has the burden to establish general causation in a mesothelioma case. Moreover, the plaintiff must show specific causation that DBMC caused the plaintiff’s mesothelioma. DBMC did not seriously contest Dr. Harrison as to the issue that asbestos generally causes mesothelioma but rather challenged him as to specific causation. Here, Dr. Harrison offered a report that stated the plaintiff’s mesothelioma was a result of “cumulative exposure to asbestos fibers from 1955 to 1988.” Dr. Harrison admitted that he authored the report for the plaintiff’s California case and had not reviewed any deposition transcripts for the instant case. Once deposed, Dr. Harrison added to his opinion that each and every exposure increased the plaintiff’s risk of developing disease. Relying on a paper from another expert, he then went as far as to opine that the plaintiff’s time onboard the Avocet was the specific cause of the plaintiff’s mesothelioma. The court quickly concluded that Dr. Harrison’s testimony was inadmissible under Federal Rule 702 because the plaintiff is required to show specific exposure to asbestos in a toxic tort case with respect to specific causation. Here, Dr. Harrison knew virtually nothing regarding the exposure onboard the Avocet. In fact, the information pulled from the plaintiff’s California interrogatories was not enough according to the court. The court also noted that the each and every exposure methodology has been rejected in the Comardelle matter. Finally, the plaintiff’s own lay testimony as to grey dust was not enough to asbestos on the Avocet hence the larger problem with the plaintiff’s case according to the court.
Dr. Tarin-The court quickly concluded that Dr. Tarin’s opinion was also substantially similar to Dr. Harrison’s and should therefore be barred. Dr. Tarin sought to testify that “cumulative exposure to all forms of asbestos contributes to the indication and propagation” of disease or what is a general opinion. Dr. Tarin therefore concluded that this proposition means that all exposures should be considered a substantial contributing factor in asbestos malignancy or specific causation. Dr. Tarin testified in his deposition that he had relied upon evidence that was nearly the same as Dr. Harrison. Finally, Dr. Tarin’s opinion that the plaintiff’s pathology slides are consistent with a “heightened susceptibility” to asbestos was not enough to remedy the lack of specific causation. Consequently, Dr. Tarin’s testimony was excluded.
According to the court, the plaintiff must establish expert testimony as to causation. Therefore, summary judgment was appropriate for DBMC.