HARRISBURG – A Pennsylvania federal judge has denied a motion to exclude expert testimony in an asbestos exposure action, ruling that issues with the testimony may later be raised in a summary judgment motion or at trial.
The ruling was delivered July 21 by U.S. District Court for the Middle District of Pennsylvania Judge Joy Flowers Conti, in the case brought by Rhonda J. Gorton against a number of companies who she believes are responsible for the mesothelioma-related death of her husband, Thomas D. Gorton II.
Thomas developed mesothelioma, allegedly due to his occupational exposure to defendants’ asbestos-containing products. Rhonda brought the instant lawsuit on behalf of her deceased husband’s estate and in her own right.
Pending before the court was the motion to exclude the expert testimony of plaintiff’s experts Dr. Richard Kradin and Dr. Howard M. Kipen, as filed by defendant Eaton Corporation (as successor-in-interest to Cutler-Hammer), and the motions filed by defendants Schneider Electric USA, Inc. and Aurora Pump Company to join Eaton’s motion to exclude. The latter were granted.
The court held a two-day Daubert hearing to address defendants’ arguments.
According to the defendants, the expert opinions submitted by Dr. Kradin and Dr. Kipen are inadmissible under Federal Rule of Evidence 702 and under the standard established in Daubert v. Merrell Dow Pharmaceuticals, Inc., because plaintiff’s experts did not use a reliable method and did not rely on any medical or scientific authority showing that defendants’ specific products had the capacity to or did in fact cause decedent’s mesothelioma.
“Defendants specifically argue that plaintiff’s experts rely on a theory that ‘each and every breath’ of asbestos is substantially causative of mesothelioma, and that testimony is impermissible under Pennsylvania law, which the parties agree is applicable to the claims at issue,” Conti said.
“Defendants rely on the Pennsylvania Supreme Court’s decision in Rost v. Ford Motor Co., which held that ‘expert testimony based upon the notion that ‘each and every breath’ of asbestos is substantially causative of mesothelioma will not suffice to create a jury question on the issue of substantial factor causation.”
Per Pennsylvania law, “to create a jury question, a plaintiff must adduce evidence that exposure to defendant's asbestos-containing product was sufficiently ‘frequent, regular, and proximate’ to support a jury's finding that defendant's product was substantially causative of the disease.”
Meanwhile, the defendants asserted that the testimony of Kradin and Kipen would be excluded under Pennsylvania’s ‘frequency, regularity, and proximity’ test, and would not satisfy either the reliability or fit requirement under Rule 702.
Under Daubert, “The district court acts as a gatekeeper, preventing opinion testimony that does not meet the requirements of qualification, reliability and fit from reaching the jury.”
Conti analyzed the parties’ arguments.
“With respect to defendants’ reliability argument, the court concluded that the experts did not rely on the impermissible ‘each and every breath’ theory; rather, they based their opinions on the cumulative theory of exposure, also referred to as the ‘each and every exposure’ theory, which has been found reliable by numerous Pennsylvania and federal courts.
Conti said that Dr. Kradin and Dr. Kipen “did not testify that a single exposure or single breath of asbestos was a substantial cause of the decedent’s mesothelioma, but that each exposure to asbestos, above background levels, cumulatively contributed to the decedent’s development of the disease.”
Conti explained that the Rule 702 requirement that testimony “will help the trier of fact to understand the evidence or to determine a fact in issue” is referred to as the “fit” requirement, and it requires that there be a “connection between the scientific research or test result to be presented and particular disputed factual issues in the case.”
“With respect to defendants’ fit argument that Pennsylvania’s “frequency, regularity, and proximity” test precludes the testimony of Dr. Kradin and Dr. Kipen, the court noted that the experts reviewed, among other things, a transcript of testimony by the decedent concerning his exposure to Eaton’s product, as well as other products, and an exposure summary prepared by plaintiff’s counsel,” Conti said.
“For the foregoing reasons and as more fully set forth on the record, the motion to exclude expert testimony is denied. This ruling is without prejudice for a defendant – in order to assert that there is no genuine dispute of material fact – to raise in a summary judgment motion or at trial an issue concerning the insufficiency of plaintiff’s evidence about the frequency, regularity, and proximity of the decedent’s exposure to a particular product.”
U.S. District Court for the Middle District of Pennsylvania case 1:20-cv-01110
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com