U.S. District Court for the District of Maine, September 16, 2020
The plaintiff, Victor Coffin, alleges he contracted mesothelioma from his work as an aviation electrician in the U.S. Navy from January 1968 to September 1971, as a machinist for Maine Central Railroad (MCRR) from 1971 to 1987 and as an employee of the State of Maine from 1987 to 1988. Defendants MCRR and Honeywell International Inc. have moved to exclude the expert testimony of the plaintiff’s experts Jerrold L. Abraham, M.D. and David Ozonoff, M.D.
District courts act “as gatekeepers of expert testimony.” Bricklayers & TrowelTrades Int’l Pension Fund v. Credit Suisse Sec. (USA) LLC, 752 F.3d 82, 91 (1st Cir. 2014). “A district court must ‘ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.'” Packgen v. Berry PlasticsCorp., 847 F.3d 80, 85 (1st Cir. 2017) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). The testimony is considered reliable if it is “based on sufficient facts or data,” it “is the product of reliable principles and methods,” and “the expert has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702(b)-(d).
Under Maine law, a claim for negligence requires a plaintiff to establish that he suffered an injury that was proximately caused by a breach of a duty owed to the plaintiff by the defendant. Grant v. Foster Wheeler, LLC, 140 A.3d 1242, 1245 (Me. 2016). “To establish a prima facie case in personal injury asbestos litigation, a plaintiff must demonstrate both product nexus, meaning that the plaintiff was exposed to the defendant’s asbestos-containing product, and medical causation, meaning that such exposure was a substantial factor in causing the plaintiff’s injury.” Id. at 1246. Moreover, the injury must have been “either a direct result or a reasonably foreseeable consequence of the negligence.”
Here, the defendants argued that Dr. Abraham should be precluded from offering a causation opinion because “(1) Plaintiff failed to disclose any such opinion, and (2) even assuming the proper disclosure of a causation opinion, Dr. Abraham’s methodology is not based on any coherent, reproducible or testable scientific methodology or principle for determining causation.”
The causation requirement under Maine law demands both an exposure to the defendant’s product and a determination that the exposure was a substantial factor in causing the plaintiff’s injury. In his report, Dr. Abraham concluded that the plaintiff’s mesothelioma was caused by his cumulative exposure to asbestos. The question before the court was not whether the plaintiff’s experts established causation, but whether the opinions of the plaintiff’s expert are admissible. The court found that Dr. Abraham’s expert conclusion rests on “‘good grounds,’ based on what is known,” Daubert, 509 U.S. at 590, and was therefore admissible.
Next, the defendants argued that the opinions of the plaintiff’s expert, Dr. Ozonoff, are not relevant or probative of foreseeability. Dr. Ozonoff’s opines what was “known or could have been known at the time Plaintiff worked in jobs where asbestos exposure was common and what was considered prudent by public health practitioners and others about what to do about protecting workers in this period” Although he does not detail what was known by a particular defendant about specific types of asbestos exposure, Dr. Ozonoff’s testimony details the history of the scientific understanding of the risks associated with asbestos exposure. The court found that this testimony was helpful in “providing context and grounding scientific information integral to the determination of this case.” Jack, 2018 WL 3819027, at *18.
The court denied the defendants’ motions to preclude Dr. Ozonoff finding that whether or not any risk was foreseeable to MCRR or Honeywell when the alleged exposure occurred is a question for the jury to answer, and does not preclude the admissibility of the opinion