Court Finds Testimony of Plaintiffs’ Causation Expert Admissible

U.S. District Court for the Northern District of California, March 26, 2021

The plaintiffs filed this action alleging decedent developed malignant mesothelioma and later died from exposure to asbestos-containing products or equipment. Specifically, the plaintiffs allege the decedent worked with Bendix brand brakes during his service in the Army and as a machinist. The plaintiffs offered Dr. Carl Brodkin as a causation expert. Dr. Brodkin opined decedent’s work with and around Bendix brakes was a substantial contributing factor in decedent’s development of mesothelioma.

Defendant Honeywell International Inc. filed a motion to exclude the testimony of the plaintiffs’ expert Dr. Brodkin challenging Dr. Brodkin’s methodology and arguing that his conclusions are undermined by epidemiological studies.

Honeywell argued that Dr. Brodkin’s methodology is flawed because: (1) Dr. Brodkin does not quantify decedent’s exposure to asbestos from Bendix brakes; (2) absent such quantification, Dr. Brodkin impermissibly opines that each and every exposure to asbestos is a substantial factor in causing mesothelioma (the “every exposure” theory); and (3) epidemiological studies have found that brake mechanics do not have an increased risk of developing mesothelioma from asbestos exposure. Honeywell contended that Dr. Brodkin’s methodology, which failed to quantify decedent’s actual exposure to Bendix brakes is unreliable and therefore inadmissible under Rule 702 and the Daubert test.

The court noted that in the context of an asbestos case, the plaintiff bears “the burden of proving that exposure to defendant’s product was a substantial factor causing the illness.” The court recognized that the term “substantial factor” is undefined, and thus clarified that “a force which plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or loss is not a substantial factor.” Accordingly, a plaintiff may meet his burden “by showing that in reasonable medical probability a defendant’s product contributed to the plaintiff or decedent’s risk of developing cancer.” The court found this was consistent with Dr. Brodkin’s distinction between “significant” and “de minimis” exposures.

In finding this, the court noted several issues with the Ninth Circuit’s “every exposure” theory, which states every exposure to asbestos contributes to the total dose and is a substantial factor in causing disease. The court noted Dr. Brodkin did not conclude that every exposure to an asbestos-containing product caused the decedent’s mesothelioma. Rather, Dr. Brodkin considered the type of work decedent performed; the amount of time he engaged in such work; and the amount of asbestos produced from such activities. There is, therefore, more than just speculation as to the actual extent of his exposure to asbestos from the defendants’ materials. The court found Dr. Brodkin’s testimony regarding causation is admissible as it is helpful to the trier of fact in determining risk from these specific exposures, even if it is based on qualitative rather than quantitative assessments of such exposure.

Honeywell also argued Dr. Brodkin failed to consider competing evidence that brakes do not cause mesothelioma based on the fact that brakes include chrysotile rather than amphibole asbestos. The court found Dr. Brodkin’s testimony admissible as his report contained cites to competing scientific literature supporting his conclusion. As such, the court declined to step in as a factfinder and weight the evidence, leaving this to the jury to decide how persuasive it finds Dr. Brodkin’s testimony.

Based on the above, the court denied Honeywell’s motion to exclude the testimony of plaintiffs’ expert.

Read the full decision here.