Plaintiff’s Expert Causation Opinion Not Considered to be Each and Every Exposure Theory The United States District Court, Western District of Washington, August 10, 2018
WASHINGTON — The United States District Court, Western District of Washington addressed several expert challenges including, among others, motions to preclude Dr. Ronald Gordon, Dr. Carl Brodkin, and Dr. Arnold Brody – all which involve the application of the “each and every exposure” and/or “cumulative exposure” theories. For a brief case background, this case centers around allegations that decedent developed mesothelioma, and ultimately passed away from the disease, due to occupational exposure to asbestos from work as a machinist in the Navy and in the Naval reserve from 1954-1962; as a machinist and piping instructor in a naval shipyard from 1967-1973; as a mechanic from 1962-1967; and from automotive work on personal vehicles from 1955-2001. The plaintiff relies upon a number of expert witnesses, including Dr. Gordon, Brodkin, and Brody, who opined on matters ranging from asbestos to medical causation.
With respect to the defendant’s expert challenges to these opinions, Judge James L. Robart first addressed the admissibility of these theories and then applied that analysis and decision as to the qualifications and admissibility of each expert.
The court outlined the definition of the each and every exposure theory as “any exposure to asbestos fibers whatsoever, regardless of the amount of fibers or length of exposure constitutes an underlying cause of injury.” Krik v. Exxon Mobil Corp., 870 F.3d 669, 672 (7th Cir. 2017). The plaintiff experts also pursue the similar “cumulative exposure” theory, which argues the cumulative exposure to asbestos is the cause of the disease, but because each exposure, no matter how small, adds to that cumulative exposure, and each exposure became a substantial contributing factor. Id., 870 F.3d at 672-673.
After reviewing the relevant precedent, including McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170 (9th Cir. 2016), this court agreed that both of these theories are unreliable as they are not tied to the severity of exposure; are not based on sufficient supporting facts and data; cannot be tested; and do not have a known error rate. The court further emphasized these theories fail to address the frequency of, regularity of, proximity to, or the strength of the exposure in question – neither depend on any characteristic of the exposure at all. Id. at 1177.
In this case, the court concluded the “each and every exposure” and “cumulative exposure” theories were inadmissible under Fed. R. Evid. 702 and the Daubert Standard, and next turned to whether the expert opinions of Dr. Gordon, Dr. Brodkin, and/or Dr. Brody rely upon the same:
Dr. Ronald Gordon:
The defendants challenged the admissibility of Dr. Gordon’s testimony regarding his microscopic testing of decedent’s lymph node tissues and raised three main arguments: (1) Dr. Gordon relies on the impermissible “every exposure” theory; (2) Dr. Gordon, although qualified to give opinions regarding microscopy, is not qualified to opine on the source of the detected fibers and (3) Dr. Gordon’s focus on lymph nodes is unreliable. The plaintiff clarified its position to the court, advised that Dr. Gordon would not be offering an opinion in this case that each and every exposure to asbestos causes mesothelioma, and therefore, argument (1) became moot. The court did allow the defendants to renew its objection if Dr. Gordon proffers causation testimony during trial. Dr. Gordon was otherwise found qualified to testify as an expert and the defendants’ motion was DENIED.
Dr. Carl Brodkin:
The defendants first challenged the admissibility of Dr. Brodkin’s causation opinion as to brake dust. Here, the defendants argued that Dr. Brodkin concludes that because there is not a known threshold for safe exposure, no exposure is safe – and points to the inadmissible each and every exposure theory. The court disagreed and found that Dr. Brodkin’s causation conclusions were not based on the theory that every exposure must necessarily be a substantial factor. Instead, Dr. Brodkin looked for an “identified exposure,” and analyzed the duration, frequency, and intensity of exposures to determine whether an exposure is significant. The court also found Dr. Brodkin’s exposure approach to be reliable in that he analyzed decedent’s occupational and environmental history, including during an interview with decedent, and compared decedent’s activities to the exposure associated with those activities documented in numerous published studies. Dr. Brodkin also factored in the asbestos content of the materials, and how often, how long, and where decedent worked with those materials. The court concluded that Dr. Brodkin relied upon his significant experience compiling and analyzing occupational histories to then determine which of the exposures qualified as identified exposures. The defendants’ challenge to preclude Dr. Brodkin’s testimony as to brake dust was DENIED.
The court also DENIED the defendants challenged as to Dr. Brodkin’s causation opinion as to clutch work for reasons not related to the each and every exposure theory.
Dr. Arnold Brody:
The defendants challenged the admissibility of Dr. Arnold Brody’s causation testimony arguing he relies on the “every exposure” theory. Specifically, the defendants point out two paragraphs in Dr. Brody’s expert report: (1) that “science has not identified an exposure to asbestos above background that does not induce mesothelioma”; and (2) that “every exposure to asbestos contributes to an individual’s cumulative dose.” The plaintiffs opposed and content that Dr. Brody will testify only matters of general causation, will not offer any case-specific testimony about the decedent, and maintain Dr. Brody will not attribute decedent’s mesothelioma diagnosis to “every exposure” he had to asbestos. The Court ruled that neither of these statements with Dr. Brody’s report ran afoul of Daubert as they are general statements of the science behind asbestos-related disease and the fact that every exposure adds to the total dose is an “irrefutable scientific fact,” and it is “well-established” that the threshold level for developing mesothelioma is unknown. Lastly, the court found that Dr. Brody does not make the inferential leap that is troublesome in the “every exposure” or “cumulative exposure” theories. Here, does not opine that because an exposure occurred and necessarily adds to the total dose, that single exposure must be a substantial cause.
Other Defense Challenges
The defendants also challenged the admissibility of Dr. William Longo (for his simulation studies) and Dr. Barry Castleman (for his historical overview of asbestos literature and his conclusion of when asbestos hazards became well known. The court found that Dr. Longo’s simulation studies were not so dissimilar from the work plaintiff actually performed to warrant exclusion, and thus, declined to exclude these studies as unreliable. Similarly, the court found Dr. Castleman qualified to testify as to the specific issues set by plaintiff as this testimony is relevant and will assist the jury in determining what any defendant knew or should have known based on the available literature. The defendants motions to exclude Dr. Castleman and Dr. Longo were both DENIED.