U.S. District Court for the Eastern District of Louisiana
As previously reported on Asbestos Case Tracker, plaintiff Frank Ragusa alleges that he developed mesothelioma from asbestos exposure. Defendant Huntington Ingalls, Inc. (Avondale) moved to exclude the testimony of the plaintiff’s experts Dr. Stephen Terry Kraus, radiation oncologist, and Dr. Rodney Landreneau, thoracic surgeon. The defendant argued that the experts’ “no safe level of exposure” or “every exposure” theory is inadmissible. In support of its contention, the defendant pointed to Dr. Kraus’s deposition testimony regarding “his answers to questions regarding whether there is a threshold level of exposure required to be a significant contributing factor for developing mesothelioma.” The defendant also noted Dr. Landreneau’s deposition testimony “regarding his belief that any exposures below background will not cause mesothelioma.” The defendants also argued that their specific causation opinions should be excluded as “the doctors’ expert reports do not rely on a quantitative or qualitative assessment and instead simply assume that each and every exposure to asbestos is above background and thus is a cause of the plaintiff’s mesothelioma.” The plaintiff opposed the motion, in part by arguing that the experts “did not reach their opinion that the plaintiff’s exposures were significant just because they were above background.”
The court first set forth that the inquiry into the admissibility of this expert testimony is determined pursuant to Daubert v. Merrell Dow Pharmaceuticals. In asbestos matters brought in Louisiana, “a plaintiff claiming asbestos-related injury must prove significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury” as per Rando v. Anco Insulators. To do so, a plaintiff must show both general causation (“that a substance is capable of causing a particular injury or condition in the general population”) and specific causation (“that a substance caused a particular individual’s injury”).
With regard to the challenge to Dr. Kraus’s testimony, the court noted a previous case where his specific causation opinions were excluded. In Vedros v. Northrop Grumman Shipbuilding, the court found his testimony to be merely reciting the every exposure theory. Specifically, Dr. Kraus testified, “if someone develops malignant mesothelioma and they have an asbestos exposure, that asbestos exposure has caused the malignant mesothelioma.” However, the court later found that Dr. Kraus cured those defects in Savoie v. Huntington Ingalls. Here, the court found that Dr. Kraus did not merely put forth an “everything above background” theory. Instead, Dr. Kraus noted “that the cumulative doses, individual’s history, kind of occupational exposure and source of exposure all determine what is a significant exposure for an individual.” Further, “Dr. Kraus’s testimony aligns with the Fifth Circuit’s guidance on specific causation, which considers the frequency of exposure to doses above-background and does not require a precise level of exposure.” (Internal citations omitted).
Similarly, the court found that Dr. Landreneau did not adopt the “every exposure” theory in his report. Instead, Dr. Landreneau explicitly contradicted the theory by opining that “[e]ven though it is recognized in the literature that brief or low levels cause mesothelioma, the levels of exposure experienced by [the plaintiff] through his work were neither brief nor low level.” He further opined that “as little as days, weeks, or months of exposure are sufficient to cause mesothelioma. However, [the plaintiff’s] exposure duration far exceeds these durations.” Further, Dr. Landreneau incorporated citations to studies that set forth asbestos exposure levels from different products and workplaces.
Lastly, the court did not exclude the testimony due to the experts being medical doctors and not occupational exposure experts. Instead, the court determined that these issues go to the weight of its credibility, but not its admissibility. Thus, the court denied the defendant’s motion to exclude.