Plaintiff’s “Every Exposure” and “Cumulative Exposure” Theories Unreliable; Various Plaintiff’s Experts Excluded U.S. District Court for the Western District of Washington, February 12, 2018

WASHINGTON — Defendant Scapa Dryer Fabrics, Inc. filed motions to exclude the plaintiff’s exposure and causation experts in this mesothelioma death matter. The Ninth Circuit remanded this matter for a new trial after finding that the District Court failed to make appropriate determinations under Daubert and Federal Rule of Evidence 702 in allowing expert testimony. The plaintiff alleged asbestos exposures during work at the Crown-Zellerbach Pulp and Paper Mill in Camas, WA. The plaintiff worked with dryer felts, among other products, in his time at the Camas Mill from 1968-2001. Now the District Court found that the “every exposure” and “cumulative exposure” theories were unreliable, and granted the defendant’s motion in part, precluding testimony of the plaintiff’s epidemiology and occupational medicine experts along with quantitative testimony from the plaintiff’s industrial hygienist.

Scapa challenged the testimony of the plaintiff’s exposure experts and the studies on which they relied. Scapa argued that the conditions under which the plaintiff’s experts analyzed fiber release were not sufficiently similar enough to the conditions at the Camas Mill where the plaintiff worked. The court denied this motion, determining that Scapa’s concerns went to the weight of evidence, not the admissibility. However, the court precluded quantitative testimony from the plaintiff’s industrial hygienist, finding that there was no adequate methodology supporting the industrial hygienist’s estimated exposure range.

In analyzing Scapa’s motion to exclude the plaintiff’s causation experts, the court went through the body of law that exists that has determined that “every exposure” and “cumulative exposure” theories were unreliable. The court determined that “both theories lack sufficient support in facts and data and thus are not the product of reliable principles and methods as required by 702.” Having made that determination, the court looked at each causation expert’s opinion to determine whether it relied on those theories. It granted Scapa’s motion as to the plaintiff’s epidemiology expert, concluding that the expert did not consider disqualifying any of the plaintiff’s asbestos exposures in determining his disease course. Further, the court granted Scapa’s motion as to its occupational medicine expert, who opined that “any exposure that an individual suffered that were in addition to ambient air levels … would, on a more likely than not basis, have been a substantial factor in causing the alleged disease.” The court determined that this language was nearly identical to previously excluded “every exposure” opinions in prior decisions, and that it was the expert’s general opinion, and not specific to the plaintiff.

Read the full decision here.

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