Plaintiffs’ Experts Fail to Calculate Dose of Exposure; Specific Causation Opinions Precluded

U.S. District Court for the Western District of North Carolina, Asheville Division, December 6, 2021

Plaintiffs David L. Settlemyer and Jan Settlemyer filed the complaint for their asbestos-related action on December 12, 2019, alleging that Mr. Settlemyer contracted mesothelioma from his work as an automobile and truck mechanic for various employers from 1979 through the present.

The defendants filed motions topreclude the plaintiffs’ expert, Dr. Edwin Holstein, from testifying as to the specific causation of Mr. Settlemyer’s mesothelioma and also moved to exclude the testimony of any of the plaintiffs’ experts, including Dr. Brent Staggs, to the extent that they seek to offer a “cumulative exposure” opinion, pursuant to Rules 403, 702, and 703 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals,  Inc., 509 U.S. 579 (1993).

Rule 702 of the Federal Rules of Evidence permits a witness to provide expert testimony if: “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. A trial court must “ensure that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Nease v. Ford MotorCo., 848 F.3d 219, 229-30 (4th Cir. 2017).

Daubert provides a number of “guideposts” to assist trial courts in determining the reliability of a proffered expert opinion: (1) whether the expert’s theory or technique can, or has been, tested; (2) whether the theory or technique has been subject to peer review and publication; (3) in the case of a particular technique, the known or potential rate of error; and (4) whether the methodology is generally accepted in the witness’s field of expertise. 

Likewise, Daubert asserts that an expert’s opinion is “relevant” if it has “a valid scientific connection to the pertinent inquiry” and helps “the trier of fact to understand the evidence or to determine a fact in issue.” Daubert, 509 U.S. at 592. “Simply put, if an opinion is not relevant to a fact at issue, Daubert requires that it be excluded.”

In his report, the plaintiff’s expert Dr. Holstein opined that Mr. Settlemyer’s exposure to asbestos in connection with his work with each of the named defendants’ products “each individually constituted a substantial factor in the causation of his malignant mesothelioma.” Dr. Holstein further opined that Mr. Settlemyer’s “cumulative exposures to asbestos while employed at Davis Oil Company were the direct and sole cause of Mr. Settlemyer’s bilateral calcified pleural plaques and his malignant mesothelioma.”

The court found that in formulating these causation opinions, Dr. Holstein did not calculate the dose of exposure that Mr. Settlemyer received from any of the defendants’ products, and did not offer a sufficient explanation to connect the data which he reviewed with his ultimate conclusions. Instead, he asserted that his findings are “obvious” and that the court should accept his conclusions based upon his years of expertise in the relevant field.

The court further found that here, the plaintiffs failed to establish that Dr. Holstein’s causation opinions were the result of a sound scientific methodology that was reliably applied to the facts of the case. Dr. Holstein freely admitted that he made no effort to quantify Mr. Settlemyer’s cumulative exposure or exposure to any particular asbestos-containing product, instead concluding that it was “obvious” in light of his review of the relevant materials and his experience that, regardless of what the particular calculation of exposure would be, it was sufficiently substantial. The court noted that Dr. Holstein’s “methodology” in this regard cannot be tested; it has no known error rate; and it has not been published or subjected to the scrutiny of peer review. As such, the court concluded that Dr. Holstein’s causation opinions were not reliable, nor would they be helpful to the jury in determining the issue of causation.

Accordingly, the court granted the defendants’ motions to preclude the specific causation opinion testimony of Dr. Holstein.

The specific causation opinion of Dr. Staggs was omitted in his supplemental expert report making the defendants’ motion to exclude the specific causation opinion moot. Despite this, the court found, similar to Dr. Holstein’s report discussed above, since Dr. Staggs’ reports did not identify the particular dose attributable to any particular defendant and because the proffer of an opinion regarding “substantial factor” causation would be tantamount to a legal conclusion and thus would not be helpful to the jury, the court granted the defendants’ motion to exclude the specific causation testimony of Dr. Staggs.

Read the full decision here.