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Rhode Island Court Denies and Grants, in Part, Joint Defense Motion to Exclude Plaintiff’s Experts

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Court: Superior Court of Rhode Island, Providence

In this asbestos action, plaintiffs claim decedent, Bonnie J. Bonito, developed mesothelioma from exposure to asbestos from laundering her late ex-husband’s work clothing (her ex-husband worked in construction during their marriage). In support of their position, plaintiffs provided expert reports authored by Dr. Richard Kradin, who provided an opinion on the specific causation of Ms. Bonito’s disease; and Dr. Michael Ellenbecker, who opined that the defendants’ products increased Ms. Bonito’s risk of developing mesothelioma, and that defendants should have placed warnings on their products. The remaining defendants in this action filed a joint motion to exclude the opinions of Drs. Kradin and Ellenbecker pursuant to Rule 702 of the Rhode Island Rules of Evidence.

In Rhode Island, courts use the Daubert standard to determine whether the offered expert testimony is scientifically sound. Specifically, courts consider these four non-exclusive factors: (1) whether the preferred knowledge can or has been tested; (2) whether the theory or technique has been subjected to peer review and publication (3) the known potential rate of error; and (4) whether the theory or technique has gained general acceptance in the relevant scientific field. Daubert v. Merrel Dow Pharmaceuticals, Inc. 509 U.S. 579, 593-92 (1993).

First, regarding Dr. Kradin: Dr. Kradin applied the “Helsinki Criteria” in revieing the deposition testimony and medical records in this action to form his opinions. The Helsinki Criteria, in part, recognizes that “in some circumstances, exposures such as those occurring among household members may approach occupational levels.” Using this criteria, Dr. Kradin opined that Ms. Bonito’s mesothelioma was caused by her “para-occupational asbestos exposure” from laundering her husband’s clothing. The defendants, however, argued that Dr. Kradin’s opinion amounted to nothing more than the “each and every exposure theory,” which they argue is not scientifically supported because it cannot be tested to determine the “frequency, regularity, and proximity” of Ms. Bonito’s alleged asbestos exposures. Ultimately, the court noted that a plaintiff’s ultimate burden to prove liability, in the asbestos context, is to show that they were frequently or regularly in proximity to a defendant’s asbestos-containing product. However, “that ultimate burden is different from . . . whether an expert’s testimony will be admitted at trial first, that the testimony has a sound scientific basis, and that it is relevant to the facts of an action.” Here, the Court determined that plaintiffs satisfied their burden regarding whether Dr. Kradin’s opinion is admissible at trial, and that there are means at trial for defendant to attack potentially “shaky but admissible evidence.”

Second, regarding Dr. Ellenbecker: Defendants first argued that Dr. Ellenbecker admitted in another case that he is unqualified to quantify risk and therefore, he is unqualified to opine whether Ms. Bonito’s risk of developing mesothelioma was increased due to her alleged asbestos exposure to defendants’ products. Additionally, defendants asserted that Dr. Ellenbecker’s methodology was not scientific because his opinion was based on the “each and every exposure theory” (which defendants argue cannot be tested for “frequency, regularity, and proximity”).

Here, the court noted that “evidence showing the dosage of an asbestos exposure crossing some threshold value is not required to show that asbestos exposure was a substantial factor in a claimant developing mesothelioma” and that a “strict formula of the causation standard for asbestos cases overburdens the claimant.” Rather, “Rhode Island law provides proximate cause does not necessarily require specific direct evidence, but instead may be shown by inference that need not exclude every other possible cause . . . but must be based on reasonable inferences drawn from the facts in evidence.”

Here, for the same reasons detailed with regard to Dr. Kradin, the court found that plaintiffs satisfied their burden regarding whether Dr. Ellenbecker’s opinions are admissible at trial. Moreover, the court noted that Dr. Ellenbecker explained in his deposition testimony in this action why quantification of the risk is not necessary and further, provided a rational for why he could not quantify the level of exposure. Here too, the court found that this explanation satisfied plaintiff’s burden regarding whether Dr. Ellenbecker’s opinions were admissible.

Finally, defendants argued that Dr. Ellenbecker was not qualified to opine about warning labels on their products. Defendants argued that Dr. Ellenbecker stated he was “not a warnings expert,” and that, since Dr. Ellenbecker is an industrial hygienist, the “only warnings he could conceivably be allowed to testify an opinion about are those on a workplace premise . . . not on defendants’ products.” Here, the court noted that Dr. Ellenbecker’s opinions regarding warnings were proffered to further plaintiff’s allegation that defendants had a duty to warn about the hazards of their asbestos-containing products but failed to do so. Given Dr. Ellenbecker’s credentials, the court found that Dr. Ellenbecker could properly provide an opinion on whether a warning could alert a worker to the dangers of asbestos. However, the court noted that because Dr. Ellenbecker stated that he was not a warnings expert, he could not opine on the adequacy of the design of any warnings provided.

Read the full decision here.