U.S. District Court for the Southern District of New York, November 30, 2020
The plaintiffs filed two lawsuits in New York state court alleging that the decedent, John Grimes, was diagnosed with mesothelioma as a result of his exposure to asbestos while working as a coppersmith apprentice at the Brooklyn Navy Yard from 1961 to 1963. During his discovery deposition, Mr. Grimes testified that he believed he was exposed to asbestos while working in the shop at the Brooklyn Navy Yard, and aboard warships. He specifically recalled working on the U.S.S. Constellation “many times,” among other ships that he was unable to recall. Mr. Grimes alleged that he observed tradesmen on the Constellation, working on pumps, valves, and boilers, and identified the name “Crane” in association with some of the bigger valves on the ship. Mr. Grimes was unable to describe the process by which the valves were removed or installed, nor could he recall the frequency with which he saw new valves on installed, though he recalled seeing gaskets put on the face of the valves during installation. He also alleged that he observed valves being removed from a boiler, and that some were partially insulated. The defendants subsequently removed the plaintiffs’ case to federal court pursuant to 28 U.S.C. 1442 (federal officer removal).
Defendant Crane Co. moved for summary judgment, and at the same time filed three Daubert motions seeking to preclude the testimony of the plaintiff’s experts Gary Crakes, who made projections about Mr. Grimes’s lost earnings; Dr. David Zhang, a pathologist whose anticipated testimony would link Mr. Grimes’s asbestos exposure with mesothelioma; and Steven Paskal, and industrial hygienist who was expected to provide testimony about Mr. Grime’s potential exposure to asbestos at the Brooklyn Navy Yard.
With regard to Dr. Crakes, the court partially granted Crane’s motion. That is, the court first held that Dr. Crake’s reliance on Mr. Grime’s 2014 income and the median income from 2019 for those in the same profession in New York State was unrealistic and speculative, and therefore should be excluded. However, his reliance on Mr. Grimes’s median income from 2014 to 2016 was not based on unrealistic or speculative assumptions, and instead reflected his actual earnings from the years immediately preceding his death. As such, Dr. Crakes’s testimony relying on this information was admissible. The court also held that Dr. Crakes’s testimony based on cited work expectancy figures was admissible, as Mr. Grimes and his domestic partner provided testimony that he had no plans to retire prior to his death. Notwithstanding, Dr. Crakes’s testimony with respect to fringe benefits, though calculated based on data provided by the U.S. Department of Labor’s Bureau of Labor Statistics, was inadmissible, as there was no basis in fact that Mr. Grimes ever received any fringe benefits. His calculation of lost household services, however, was admissible, as based on the national average for males without children in the household.
With regard to Mr. Paskal, Crane’s motion to preclude his testimony was denied. The court found that Mr. Parka’s opinions were based on Mr. Grimes’s testimony regarding the work that he observed and his proximity to same, as well as the testimony of the plaintiff’s naval expert. The court held that Mr. Paskal was permitted to rely on assumptions that may be established by other evidence at trial, and any perceived gaps or inconsistencies in his reasoning were subject to cross-examination.
The court also denied Crane’s motion to limit Dr. Zhang’s specific causation testimony. While Crane argued that Dr. Zhang’s did not address Mr. Grimes’s exposure to Crane products in his report, the court found that Dr. Zhang could testify at trial based on other facts in the record, including Mr. Grimes’s testimony regarding his observation of work performed on Crane valves, the naval expert’s testimony regarding the presence of Crane vales on the Constellation, and Mr. Paskal’s scientific quantification of Mr. Grimes’s asbestos exposure levels. Crane also argued that Dr. Zhang’s testimony should be precluded because his report set forth an “every exposure” theory, which Crane argued has been deemed unreliable by other courts. Addressing this argument, the court first noted that courts are split on whether the “every exposure” theory and “cumulative exposure” theories are the same. The court ultimately held, however, that Dr. Zhang’s report expounded upon the Helsinki Criteria for considering whether exposure to asbestos caused Mr. Grimes’s mesothelioma, and he applied that criteria to Mr. Grimes’s case based on his review of Mr. Paskal’s report regarding exposure levels. As such, the court concluded that “Dr. Zhang’s application of the ‘cumulative exposure; theory in this case evince[d] a sufficiently reliable methodology to satisfy the Daubert threshold for admissibility.”
Finally, the court denied Crane’s motion for summary judgment, which was based on specific causation. Crane made three primary arguments: (1) that Plaintiffs’ expert witnesses had not presented any evidence that Crane’s products caused Mr. Grimes’s mesothelioma; (2) that there was no evidence that any flange gasket or insulation that the Navy used in connection with Crane valves contained asbestos; and (3) that there was no evidence of any asbestos exposure from a Crane valve. As to Crane’s argument regarding Plaintiff’s experts, the court held that based on its holdings with regard to Dr. Zhang and Mr. Paskal, discussed above, there was a genuine dispute of fact as to whether Crane’s valves contributed to Mr. Grimes’s mesothelioma. With regard to Crane’s argument regarding evidence that flange gaskets and insulation used in connection with its valves contained asbestos, the court noted Plaintiff’s naval expert’s deposition testimony that the Navy used both asbestos-containing and non-asbestos-containing insulation materials, which raised a question of fact on the issue. And finally, the court held that Mr. Grimes’s testimony created a genuine issue of material fact as to whether he was exposed to asbestos from a Crane valve.