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Plaintiff Expert Opinion on “Every Exposure” Testimony Precluded under Daubert

U.S. District Court for the Northern District of California

Plaintiffs Thomas Toy, Jr. and Agnes Toy allege that Mr. Toy developed malignant mesothelioma and later died from exposure to asbestos-containing products or equipment that Defendants manufactured or supplied. Pending before the court are motions to strike or exclude the anticipated testimony of the plaintiffs’ causation expert Dr. Arnold Brody and motions to exclude evidence or testimony that “every exposure” to asbestos causes mesothelioma, as well as the plaintiffs’ motion to strike two defense experts.

The court reviewed Federal Rule of Evidence 702 and Daubert and the prerequisites they set forth for expert testimony to be admissible. Since Dr. Brody does not purport to offer evidence of causation specific to Mr. Toy but only background information about asbestos generally, the court granted the defendants’ motion, holding that Dr. Brody may not offer evidence on specific causation.

Next, the court examined the defendants’ argument that Dr. Brody’s anticipated testimony regarding general causation should be excluded because (1) he lacks the proper qualifications to render opinions about asbestos in humans; (2) his opinions are based on animal studies, which cannot be extrapolated to humans; and (3) any opinions based on these animal studies are irrelevant because Dr. Brody exposed animals to higher concentrations of asbestos than those to which Mr. Toy was exposed. The court quickly disregarded the first argument, finding that Dr. Brody’s decades of relevant experience and authorship qualified him on this topic, regardless of the fact that he was not a medical doctor.

Regarding the defendants’ arguments concerning the animal studies that form the basis for Dr. Brody’s opinions, the court held that Dr. Brody’s report addressed those concerns and explained how animal studies provide an informative background for understanding the effects of asbestos exposure in humans, such as Mr. Toy. Ultimately, the court held that the defendants would have ample opportunity to cross Dr. Brody on any perceived shortcomings of his opinions and determined that the defendants’ criticisms went to the weight of Dr. Brody’s expert testimony, not to its credibility.

After holding that Dr. Brody may offer general causation testimony, the court then turned to Defendants’ Motion to Exclude “Every Exposure” Testimony. Under the “every exposure” theory, every exposure to asbestos contributes to the total dose and is a substantial factor in causing disease. See, e.g., McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1177 (9th Cir. 2016). The defendants suggest that this “every exposure” theory is embedded within the opinions of the plaintiffs’ experts and should be excluded. Meanwhile, the plaintiffs deny that their experts intend to rely on an “every exposure” theory. After examining the excerpts of the reports of the plaintiffs’ experts cited by the defendants in support of their motion, the court determined that none of the plaintiffs’ experts appeared to rely on an “every exposure” theory of liability. If the plaintiffs’ experts attempt to offer such opinions, such testimony will be excluded.

The court also examined the plaintiffs’ motions to exclude the anticipated testimony of defense experts Drs. Dennis J. Paustenbach and Victor L. Roggli. Dr. Paustenbach’s expert report provided background information about pumps and asbestos contained in their gaskets and packing, and the risks posed by different types of asbestos. His report, provided by defendant Warren Pumps, also opined that (1) low airborne levels of asbestos—such as those occurring in the ambient background in buildings and urban areas—are not associated with an increased risk of asbestos-related disease; and (2) Mr. Toy’s exposure to chrysotile asbestos fibers from working with Warren pumps would not have increased his risk of asbestos-related disease. The plaintiffs challenge Dr. Paustenbach’s opinions regarding Mr. Toy’s risk as inconsistent and lacking proper foundation. The court was not persuaded by the plaintiffs’ challenges, finding that the plaintiffs were arguing the merits of their case rather than the admissibility of Dr. Paustenbach’s testimony. The plaintiffs’ arguments were without support, and the plaintiffs would have ample opportunity to challenge his opinions through cross-examination and through their own expert testimony. The court also found no basis to exclude Dr. Paustenbach’s testimony pursuant to Rule 403, as there was no evidence that it was too complex for a jury to understand.

The plaintiffs also moved to exclude Dr. Roggli, a pathology expert designated by defendants Armstrong International, Inc. and Ingersoll-Rand Company. Dr. Roggli opined that Mr. Toy had lung cancer, not mesothelioma, and that his disease was caused by his history of smoking cigarettes, rather than his alleged asbestos exposure. The plaintiffs contend that Dr. Roggli lacked the proper foundation to render these opinions because he did not have information about Mr. Toy’s actual asbestos exposure. However, the court disagreed with the plaintiffs. In forming his opinions, Dr. Roggli had reviewed pathology materials, medical records, and the reports from other experts in this case. The plaintiffs’ argument that Dr. Roggli’s opinions were improper or lacked adequate foundation were not supported, and the court denied the plaintiffs’ motion to exclude Dr. Roggli’s expert testimony.

Read the full decisions here and here.