Jurisdiction: United States District Court for the Southern District of New York
Plaintiff Scott Keller alleged that he was exposed to asbestos during his employment on ExxonMobil Oil Company vessels and that he developed lung cancer as a result. Exxon eventually moved for summary judgment and sought to preclude the opinions and testimony of plaintiff’s three expert witnesses, including Richard L. Kradin, M.D. Plaintiff also moved to preclude the opinions and testimony of certain Exxon experts.
The court first addressed Exxon’s motion to preclude Dr. Kradin as the merits of that argument had the potential to impact the merits of Exxon’s summary judgment arguments. Exxon argued that Dr. Kradin’s testimony was inadmissible and that, without such testimony, plaintiff could not sustain his burden to establish that his injury was specifically caused by asbestos, let alone asbestos exposure during his employment with Exxon. Specifically, per Exxon, the expert testimony of Dr. Kradin, whom plaintiff identified as his “specific causation expert,” did not rely on “established facts and data pertaining to Plaintiff’s alleged asbestos exposure” aboard Exxon vessels and therefore, plaintiff failed to meet his burden of demonstrating by a preponderance of the evidence that Dr. Kradin’s testimony met each criterion of reliability under Rule 702. The court agreed.
According to the court, Dr. Kradin did not base his opinions as to plaintiff “on any specific testing or any other objective measurement of the actual dose of asbestos that Plaintiff was allegedly exposed to” aboard Exxon vessels, despite acknowledging that asbestos is a “dose-responsive disease.” Additionally, Dr. Kradin conceded in deposition testimony that he found no evidence of relevant medical markers for an asbestos-related injury while reviewing plaintiff’s medical records. Instead, Dr. Kradin relied on testimony provided by plaintiff and former Exxon employees – none of which had knowledge of asbestos aboard any of Exxon’s vessels. Finally, while Dr. Kradin cited to scientific literature stating that individuals in the Merchant Marines are at an increased risk of asbestos-related disease, Dr. Kradin did not incorporate specific figures from the literature into his report. Regardless, per the court, even if Dr. Kradin did incorporate such information, he does not have “any kind of maritime expertise that would render his application of such historic third-party exposure information to the facts of this case proper.”
Ultimately, the court concluded that Dr. Kradin’s opinions and testimony appeared to be premised upon the “unsupported assumption that Plaintiff was exposed to an unquantified level of asbestos throughout the duration of his career as a merchant mariner.” However, such evidence “falls well short of Rule 702’s mandate.” Because plaintiff failed to meet his burden of demonstrating by a preponderance of evidence that Dr. Kradin’s testimony was (1) based on sufficient facts or data, (2) the product of reliable principles and methods, and (3) reflective of a reliable application of the principles and methods to the facts of the case, as required by Rule 702, the court granted Exxon’s motion to preclude Dr. Kradin’s opinions and testimony.
Given the decision as to Dr. Kradin, the court also granted Exxon’s motion for summary judgment because plaintiff was unable to proffer admissible expert testimony to support a finding that plaintiff’s lung cancer was caused by exposure to asbestos, whether on Exxon ships or otherwise. The court also deemed Exxon’s remaining motions to preclude plaintiff’s experts, as well as plaintiff’sother motions to preclude, moot given the aforementioned decisions.
Read the full decision here.