Court: United States District Court for the Middle District of Florida, Tampa Division
In this asbestos action, defendants Atwood & Morrill Co. Inc. and Warren Pumps LLC filed a Daubert motion to exclude, or limit, certain causation testimony and opinions of plaintiff’s expert, David Zhang, MD.
Plaintiff Arnold Edmonds served aboard the USS Saratoga from 1962-1964. While on the ship, he was allegedly exposed to asbestos, which allegedly caused him to develop non-small cell lung carcinoma. Plaintiff filed suit against more than 20 companies and manufacturers of parts and machinery on the USS Saratoga under theories of negligence and strict liability.
Regarding Atwood’s and Warren’s motions, defendants largely objected to the opinions in the last two pages of Dr. Zhang’s report. In that final section, Dr. Zhang opined that plaintiff had “a history of significant level of asbestos exposure and radiologically documented asbestosis and pleural plaque” and that plaintiff’s lung cancer “is related to asbestos exposure and the cumulative exposures of each asbestos-containing product.” Defendants argued the aforementioned opinions were inadmissible as they were irrelevant, unhelpful, and did not comport with maritime law. They further argued the opinions regarding the totality of alleged exposures was not product-or-defendant specific and therefore, not probative of whether their products were a substantial contributing factor to the alleged injury. Defendants further challenged Dr. Zhang’s “cumulative exposure” methodology as unscientific, unreliable, and widely rejected. Lastly, defendants argued that Dr. Zhang’s conclusion that plaintiff exhibited radiologically documented asbestosis lacked a factual basis and was inadmissible hearsay.
In response, plaintiff argued that defendants did not rebut Dr. Zhang’s qualifications nor the relevance and reliability of his testimony. Moreover, plaintiff argued that Dr. Zhang was “unquestionably qualified to opine on the medical causation of asbestos-related disease” and that the testimony fit the case and would assist the jury in understanding complex topics.
Ultimately, the court granted defendants motion in-part and denied it in-part. First, the court determined that defendants correctly argued that Dr. Zhang had no apparent basis for concluding that plaintiff suffered from radiologically documented asbestosis. Plaintiff’s medical records contained only one mention of “radiologically documented asbestosis” – a chest CT report which generally concluded that plaintiff had a “history” of the condition. However, the court pointed out that this statement lacked foundation (both in the medical record and in the expert opinion). Thus, the court determined that any testimony regarding plaintiff’s alleged history of radiologically documented asbestosis was barred.
Next, the court agreed that Dr. Zhang’s opinion stating that “the cumulative exposure of each asbestos-containing product significantly contributed to the development of [Plaintiff’s] lung cancer” applied an unreliable methodology and was therefore inadmissible. Specifically, the court noted that Dr. Zhang’s cumulative exposure opinion did not consider “whether exposure to asbestos attributable to a specific defendant’s product can plausibly be deemed substantial based on the amount, frequency, and duration of that exposure.” Moreover, the court deemed the opinion unreliable for “the same reason courts have widely rejected the ‘each and every exposure theory’ and certain broad versions of the ‘cumulative exposure theory.’ That is, theories which generally conclude that each exposure, no matter how small, adds to that cumulative exposure causing each exposure to become a substantial contributing factor. Per the court, such theories are inadmissible under Florida and maritime law, as they do not require an expert to “attempt to analyze a defendant’s particular exposure or the degree to which it increased his risk of mesothelioma” and completely ignores the “dose-response relationship.” For these reasons, the court determined that Dr. Zhang was barred from expressing the previously mentioned “cumulative exposure” opinion to the jury, as plaintiff did not establish that the testimony was a product of reliable principles and methods, or that Dr. Zhang reliably applied such principles and methods to the facts of the case.
Lastly, the court determined that the remainder of Dr. Zhang’s opinions passed muster under Daubert and Federal Rule of Evidence 702. Most notably, the court found that Dr. Zhang’s opinion stating that “all [of Plaintiff’s] asbestos exposures increased his risk of asbestos-related lung cancer in a cumulative, dose related manner” was sufficiently reliable to survive Daubert as, contrary to the “cumulative exposure” opinion, it included caveats that other persuasive decisions have suggested are material.
Read the full decision here.