U.S. District Court for the Middle District of Pennsylvania, July 21, 2020
Decedent Thomas Gorton, the husband of plaintiff Rhonda J. Gorton, developed mesothelioma, allegedly due to his occupational exposure to defendants’ asbestos-containing products. Prior to trial, defendant Eaton Corporation, as successor-in-interest to Cutler-Hammer filed a Motion to Exclude the Expert Testimony of the plaintiff’s experts Richard Kradin, M.D. and Howard M. Kipen, M.D., MPH. In July 2020, the court held a two-day Daubert hearing. Under Daubert, “the district court acts as a gatekeeper, preventing opinion testimony that does not meet the requirements of qualification, reliability and fit from reaching the jury.” Reliability and fit are the two prongs at issue here.
Eaton argued that the expert opinions submitted by Dr. Kradin and Dr. Kipen were inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because the plaintiff’s experts did not use a reliable method and did not rely on any medical or scientific authority showing that Eaton’s products had the capacity to or did in fact cause the decedent’s mesothelioma. Eaton specifically argued the plaintiff’s experts relied on a theory that “each and every breath” of asbestos is substantially causative of mesothelioma, and that testimony is impermissible under Pennsylvania law.
Eaton relied on the Pennsylvania Supreme Court’s decision in Rost v. Ford Motor Co., 151 A.3d 1032 (Pa. 2016), which held that “expert testimony based upon the notion that ‘each and every breath’ of asbestos is substantially causative of mesothelioma will not suffice to create a jury question on the issue of substantial factor causation.” Rost, 151 A.3d at 1044. Under Pennsylvania law, “to create a jury question, a plaintiff must adduce evidence that exposure to defendant’s asbestos-containing product was sufficiently ‘frequent, regular, and proximate’ to support a jury’s finding that defendant’s product was substantially causative of the disease.” Id. Eaton argued that the testimony of Kradin and Kipen would be excluded under Pennsylvania’s “frequency, regularity, and proximity” test, and does not satisfy either the reliability or fit requirement under Rule 702.
To evaluate reliability under Rule 702, the Third Circuit Court of Appeals has eight factors that a district court may examine: (1) whether a method consists of a testable hypothesis; (2) whether the method has been subjected to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. In re Paoli R.R Yard PCB Litigation (Paoli II), 35 F.3d 717, 742 n.8 (3d Cir. 1994).
With respect to Eaton’s reliability argument, the court concluded that because the experts testified that each exposure to asbestos, above background levels, cumulatively contributed to decedent’s development of his disease, the experts did not rely on the impermissible ‘each and every breath’ theory. Rather, the experts based their opinions on the cumulative theory of exposure and also referred to as the “each and every exposure” theory, which has been found reliable by Pennsylvania and federal courts.
Rule 702 fit requirement necessitates that testimony “will help the trier of fact to understand the evidence or to determine a fact in issue.” Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). Fit requires that there be a “connection between the scientific research or test result to be presented and particular disputed factual issues in the case.” In re Paoli R.R. Yard PCBLitigation (Paoli II), 35 F.3d 717, 742 n.8 (3d Cir. 1994).
The court held that because Kradin and Kipen reviewed and relied upon, among other things, a transcript of testimony by decedent concerning his exposure to Eaton’s product, as well as other products, and an exposure summary prepared by the plaintiff’s counsel, a question of fact was sufficiently raised. Therefore, the court concluded that there was sufficient connection between the opinions of Kradin and Kipen and the disputed factual issues in this case to satisfy the Rule 702 fit requirement.
Accordingly, the court denied Eaton’s motion.