Federal Court Limits Plaintiff’s Expert, Dr. William Longo’s, Testimony U.S. District Court for the Middle District of Florida, Jacksonville Division, June 21, 2016
The plaintiff, Marsha K. Dugas, as Personal Representative of the Estate of Darryl S. Dugas, filed suit in the U.S. District Court for the Middle District of Florida, Jacksonville Division, alleging that Darryl Dugas developed mesothelioma from his exposure to asbestos during the late 1960s and early 1970s, while serving in the U.S. Navy and attributing that exposure to several products allegedly manufactured by various defendants. In support of this claim, the plaintiff retained Dr. William Longo to provide an expert opinion as to the causation of Dr. Dugas’s diagnosis. Several defendants filed motions in limine to exclude Dr. Longo’s testimony under Daubert.
On June 21, 2016, the court ruled upon the following motions in limine:
- Defendants’ Henkel Corporation and Dexter-Hysol Aerospace, LLC’s Motion to Exclude Dr. Longo’s Opinions and Experimental Tests under Daubert;
- Defendant United Technologies Corporation’s (UCT) Motion to Exclude MAS Work Practice Study (Clamp Study);
- UCT’s Amended Motion to Exclude Opinions of William E. Longo; and
Henkel and Dexter Motion to Exclude Longo’s Opinions and Experimental Tests under Daubert
This motion is predicated upon the plaintiff’s exposure to the product “EPON 934,” which was an asbestos-containing, two-part adhesive, originally developed and sold by the Shell Chemical Company. The user would need to mix both parts at a ratio of 100 parts of part A and 33 parts of part B, and then allow the mixed material to set. Dugas allegedly used this product while repairing the exterior of A-7 aircrafts during his Navy service.
Dr. Longo opined that Mr. Dugas “would have been exposed to significant levels of airborne asbestos fibers” while Mr. Dugas was “sanding” and “filing” asbestos-containing adhesives such as EPON 934. Following his initial report, Dr. Longo created several work-practice experiments which involved Dr. Longo’s attempts to recreate EPON 934 and to test his version of EPON 934 under work practices similar to those employed by Mr. Dugas. With respect to these experiments, Dr. Longo was provided with the “manufacturing instructions” for EPON part A and part B which set out the formula and procedures for their mixture. The defendants argued that Dr. Longo’s opinion and results should be excluded because he failed to apply a reliable methodology, and he failed to rely on sufficient facts and data. The defendants focus on Dr. Longo’s deviations from: (1) the EPON 934 formula card; (2) the manner in which Mr. Dugas used EPON 934; and (3) the environmental conditions under which Mr. Dugas used EPON 934.
In response to the defendants’ arguments, Dr. Longo admitted his method of recreation of EPON 934 did not adhere to the formula provided and conceded that this work-practice study would not necessarily replicate the level of asbestos exposure that Mr. Dugas encountered. However, Dr. Longo explained his deviations were appropriate because (1) there were not any substantial differences between the materials called for by the formula and the materials which he actually used; (2) they were necessary in light of practice considerations; and (3) it would be impossible to simulate and accurately replicate the variables associated with the environmental conditions that Mr. Dugas faced.
Henkel and Dexter ultimately sought to exclude Dr. Longo’s opinions and testing because of these deviations from the manufacturing instructions and his failure to replicate the work practices and conditions of Mr. Dugas. The court noted that admissible experimental and demonstrative evidence need not “be precisely reproduced, but they must be so nearly the same in substantial particulars as to afford a fair comparison in respect to the particular issue to which the test is directed” when such evidence is offered as a “recreation of the accident . . . .” Burchfield v. CSX Transp., Inc., 636 F.3d 1330, 1334, 1336-37 (11th Cir. 2011) (internal quotations and citations omitted). However, when evidence “is offered only as an illustration of general scientific principles, not as a reenactment of disputed events, it need not pass the substantial similarity test[,]” but the evidence should be presented without suggesting that it simulates the relevant conduct. Burchfield, 636 F.3d at 133435.
In the case at bar, the court found that the plaintiff was not seeking to offer Dr. Longo’s work-practice study as reenactment evidence. Rather, the study was offered as one which demonstrates the effect of applying an abrasive material such as sand paper to an asbestos-containing adhesive similar to the one which Mr. Dugas worked with. With that in mind, the court concluded that Dr. Longo’s opinion assisted the jury regarding the release of respirable asbestos fibers, and to the extent of Henkel and Dexter’s challenge, they are free to make those points to the jury on cross-examination at trial.
The court clarified that, in admitting that Dr. Longo’s opinions from his work-studies, “demonstrative exhibits tend to leave a particularly potent image in the jurors’ minds.” Citation Omitted. In turn, this leads to the potential that Dr. Longo’s video demonstration may unfairly prejudice defendants. For that reason, the court limited the plaintiff to presenting Dr. Longo’s work-studies as illustrative of physical principles and not as reenactment evidence replicating the actual levels of asbestos Mr. Dugas encountered. Thus, all demonstrative evidence, including videos of the work-studies, was excluded for being unfairly prejudicial.
As to this motion in limine, the Court DENIED in part and GRANTED in part as follows:
- Longo may opine that the sanding and filing of EPON 934 releases significant levels of respirable asbestos fibers
- Plaintiff shall not introduce videos of Dr. Longo sanding EPON 934 on direct examination
- Longo shall not opine on the quantity of asbestos fibers Mr. Dugas encountered while working with EPON 934
UCT’s Motion to Exclude “Clamp Study”
UTC’s motion to exclude Dr. Longo’s “Clamp Study” focuses on Mr. Dugas’s alleged asbestos exposure from his work with asbestos-containing clamps aboard an A-7 aircraft.
Dr. Longo conducted a “clamp study” which was based on 45 clamps and two wire insulation samples. Thirty-nine (39) of the clamps were “new” clamps of unknown origin, while the remaining materials were collected from a commercial aircraft engine. Thus, UTC claimed that Dr. Longo’s clamp study failed to simulate the conditions Mr. Dugas faced while serving in the Navy and that Dr. Longo failed to apply a reliable methodology interpreting the results. UTC also contended the clamps tested were not representative of the clamps which would have been present on the engines with which Mr. Dugas worked. Further, UTC argued the manner in which the clamps were tested were not representative of what would have been present on the aircraft Mr. Dugas was working on. Finally, UTC argues that Dr. Longo deviated from OSHA recommendations as to OSHA Method ID-160 which provides guidelines for collecting air samples.
In response, Dr. Longo concede the clamp study did not replicate Mr. Dugas’s working environment, but the study would demonstrate whether the clamps would release measurable amounts of respirable asbestos fibers. Dr. Longo did not dispute UTC’s argument regarding the manner in which the clamps were tested but argued that issue should be addressed on cross-examination. Dr. Longo clarified defendants OSHA argument by explaining that his deviation actually improved the accuracy of the detection limits in the air sampling in that it caused asbestos to be detected where strict adherence to protocol previously produced no detection of asbestos.
In its review, the court is outlined four guiding factors for district courts to consider when evaluating an expert’s methodology: (1) whether the expert’s methodology has been tested or is capable of being tested; (2) whether the theory or technique used by the expert has been subjected to peer review and publication; (3) whether there is a known or potential error rate of the methodology; and (4) whether the technique has been generally accepted in the relevant scientific community.
In this case, the court found that the plaintiff failed to establish that any of these factors weigh in favor of admitting Dr. Longo’s opinion. The court concluded, while they might be inclined to leave some of Dr. Longo’s questionable tactics for the jury to resolve through cross-examination and competing expert testimony, in this case, it is clear from Dr. Longo’s deviations both in the development of the clamp study and his subsequent failure to follow any generally accepted, peer-reviewed, substantiated, or published methodology for interpreting his results that his opinion’s underpinnings are unreliable.
Accordingly, the court GRANTED Defendant’s motion to exclude Dr. Longo’s opinions as to the clamp study.
UCT’s Motion to Exclude Dr. Longo’s Opinions
Finally, UCT challenged Dr. Longo’s method of analysis of a surface sample of dust taken from the engine bay of an abandonded airframe. Dr. Longo used the American Society for Testing and Materials D5755 to analyze the surface sample. Defendant’s expert contends the use of D5755 to analyze surface samples “is a not reliable, tested, and generally accepted analytical method for assessing occupational exposure to airborne asbestos. In fact, Dr. Longo’s depostion testimony corrorabates this opinion. In addition, to applying an unreliable analytical method, Dr. Longo admitted he did not follow the D5755 protocol because he only took one simple sample from the tested airframe (rather than the minimum of three samples). Dr. Longo explained that this deviation does not invalidate his conclusion becase the three sample sizes are not needed for such a small area.
The court ulimately found that Dr. Longo failed to support his use of D5755 to quantify the levels of asbestos present in the surface sample at issue; to follow the D5755 protocol; to account for variables associated with using an abandoned A-7 airframe; and to explain how he extrapolated his surface sample results to the airborne exposure Mr. Dugas would have encountered.
Accordingly, UCT’s motion to exclude Dr. Longo’s opinions as to the surface sample dust was GRANTED.