Federal Court Applies Laws of New Jersey and the Third Circuit in Allowing Experts to Testify Regarding General, Not Specific, Causation in Case Alleging Renal Cancer

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The plaintiff alleged that he developed renal cancer from asbestos exposure while working at the Philadelphia Navy yard, the New York Shipbuilding yard, and various automotive and electric shops in New Jersey. In July 2013, this case was removed to the federal court in Pennsylvania as part of MDL-875. Defendant Ford moved to exclude the expert testimony of Arthur Frank, M.D., Ph. D., and Scott A. Bralow, D.O., because: (1) the “any exposure” theory underlying their opinions has been deemed inadmissible under Pennsylvania law; (2) the opinions are generally unreliable; and (3) the experts cannot establish either general or specific causation, thus their opinions are irrelevant and inadmissible. The court allowed these experts to testify regarding general causation, but not specific causation.

In deciding this issue, the court applied New Jersey law, not Pennsylvania law, to the substantive issues of the case. The plaintiff stated that he is only pursuing claims against Ford from exposures that occurred to Ford products in New Jersey. In deciding procedural issues, the court applied the law of the Third Circuit, which has held that there are certain limited circumstances in which a state’s substantive law regarding admissibility of expert evidence may apply in a case pending in federal court. Specifically in this case, the Third Circuit has held that such is the case where the state substantive rule of admissibility (1) does not conflict with the federal rule, and (2) implicates the state law substantive burden of proof regarding a matter for which the evidence at issue is presented.

Thus, the court looked to the laws of New Jersey in determining whether this testimony may be admissible. The court stated:  “In short, Defendant has not cited – and the Court has not located – any authority establishing that an asbestos plaintiff asserting claims under New Jersey law must present expert evidence in order to establish both general causation and specific causation. In particular, the Court concludes that, under New Jersey law, there is no absolute requirement for expert evidence to establish specific causation.” However, since this case asserts a causal link between asbestos and renal cancer, an infrequent and atypical asbestos-related illness, the plaintiff must provide expert testimony regarding general causation.

Next, the court applied Federal Rule of Evidence 702 and Daubert to determine whether the testimony of Drs. Frank and Bralow was indeed admissible. Ford argued their testimony was inadmissible for a variety of reasons, and provided a competing expert report from Dr. Suresh H. Moolgavkar, M.D., Ph. D., which asserted there is no evidence that asbestos is linked to renal cancer, and listed other causative factors for the plaintiff’s renal cancer. The plaintiff argued both were admissible and created a fact issue for the jury as to whether asbestos was a cause of the renal cancer. Ford did not dispute that there was evidence of frequent, regular, and proximate exposure to asbestos from brakes for which it was liable; under New Jersey law, this was sufficient to establish specific causation and the plaintiff was only required to establish general causation.

The court stated that all of the cases cited by Ford excluding the “any exposure” theory were inapplicable or distinguishable from this case, and the expert opinions offered here were “cumulative exposure” opinions and admissible. However, Dr. Frank was not permitted to opine on the increased risk of asbestos-related illness with increased exposure in the context of specific causation, because Dr. Frank could not state whether the amount of asbestos exposure in this case would have been sufficient to cause the plaintiff’s injuries. Regarding general causation (i.e. asbestos causes renal cancer), the court listed the items relied upon by Dr. Frank to support its ruling that he could testify as to general causation; to the extent that Ford had an expert with a contrary opinion, this was for the jury to examine and not proper for exclusion. Likewise, Dr. Bralow was also able to testify regarding general causation, for the same reasons.

Read the full decision here.