United States District Court, N.D. Illinois, Eastern Division
MARILYN F. QUIRIN, Special Representative of the Estate of RONALD J. QUIRIN, Deceased, Plaintiff,
LORILLARD TOBACCO COMPANY, et al., Defendants.
MEMORANDUM OPINION & ORDER
JOAN B. GOTTSCHALL, District Judge.
Plaintiff Marilyn F. Quirin, special representative of the estate of Ronald J. Quirin ("Quirin"), has sued defendant Georgia-Pacific LLC on a negligence theory, alleging that Mr. Quirin's mesothelioma was caused by his exposure to asbestos while working as a telephone installer and supervisor. Quirin claims that, between 1957 and 1977, Mr. Quirin worked near drywall installers who used Georgia-Pacific's drywall joint compound, which contained chrysotile asbestos. Now before the court is Georgia Pacific's motion to exclude expert testimony and argument that "each and every exposure" to asbestos was a cause of Mr. Quirin's mesothelioma. The court concludes that the expert testimony in question is admissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and denies the motion.
I. LEGAL STANDARD
Under Rule 702, an expert witness, "qualified... by knowledge, skill, experience, training, or education, " may testify 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." Fed.R.Evid. 702.
A trial judge has the "task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597. "To do so, the district court must ascertain whether the expert is qualified, whether his or her methodology is scientifically reliable, and whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.'" Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011) (quoting Fed.R.Evid. 702). The court must also determine if an expert is offering legal conclusions, as "experts cannot make those." See United States v. Diekhoff, 535 F.3d 611, 619 (7th Cir. 2008).
"The reliability of the expert's principles and methods can be examined by looking at factors such as (1) whether the scientific theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether a particular technique has a known potential rate of error; and (4) whether the theory or technique is generally accepted in the relevant scientific community." Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013) (citing Daubert, 509 U.S. at 593-94). The Seventh Circuit has explained that the judge's concern "is not the ultimate correctness of the expert's conclusions. Instead, it is the soundness and care with which the expert arrived at her opinion: the inquiry must focus... solely on principles and methodology, not on the conclusions they generate.'" Id. (quoting Daubert, 509 U.S. at 595). If the expert's principles and methodology reflect reliable scientific practice, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596.
II. GEORGIA-PACIFIC'S MOTION TO EXCLUDE "EACH AND EVERY EXPOSURE" TESTIMONY
Georgia Pacific moves the court to preclude Plaintiff's experts Dr. Carl Brodkin and Dr. Arnold Brody from testifying that "each and every exposure" to chrysotile fibers from Georgia Pacific joint compound was a substantial contributing factor causing Mr. Quirin's disease, and to preclude Quirin's counsel from making an argument to that effect.
As an initial matter, Quirin represents that Dr. Brody will offer no specific causation testimony at trial, and further states that Dr. Brody will not espouse the theory that all exposures to asbestos, regardless of dose or fiber type, are causative. Based on this representation, the court denies Georgia-Pacific's motion as moot with respect to Dr. Brody.
With respect to Dr. Brodkin's testimony, the court previously concluded that similar testimony by Dr. Brodkin, regarding the relationship between a source of asbestos exposure and Mr. Quirin's mesothelioma, was admissible against defendants Lorillard Tobacco Company and Hollingsworth & Vose Company. ( See Order Feb. 25, 2014, ECF No. 238.) The court will repeat much of the analysis in that order here.
First, the court acknowledges that testimony that "each and every exposure" to asbestos is a substantial factor causing mesothelioma has been rejected by numerous federal and state courts as unscientific and unsubstantiated by evidence. See, e.g., Lindstrom v. A-C Prods. Liab. Trust, 424 F.3d 488, 492-93 (6th Cir. 2005); Smith v. Ford Motor Co., No. 2:08-cv-630, 2013 WL 214378, at *1-3 (D. Utah Jan. 18, 2014); Betz v. Pneumo Abex, LLC, 44 A.3d 27, 56-57 (Pa. 2012) ("[W]e do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation[.]"). Other courts, however, have deemed similar testimony scientifically valid. See, e.g., In re Asbestos Prods. Liab. Litig., MDL No. 875, No. 10-cv-61118, 2011 WL 605801, at *7 (E.D. Pa. Feb. 16, 2011) (allowing opinion that "every occupational and bystander exposure to asbestos above background was a substantial contributing factor in causing... mesothelioma"). Still other courts have distinguished testimony suggesting that a de minimus exposure to asbestos could cause mesothelioma from testimony that each significant exposure to asbestos could be a cause. See, e.g., Dixon v. Ford Motor Co., No. 82, 70 A.3d 328 (Md.App. Ct. July 25, 2013) (explaining that expert's "opinion was based on evidence of repeated exposures... to high-level doses of asbestos fibers... and must be viewed in that light").
As the court stated in its February 25, 2014, order, however, for purposes of this motion, it need not decide whether an expert may offer testimony that each and every exposure to asbestos is a significant cause of mesothelioma, because that is not Dr. Brodkin's opinion. Quirin represents that Dr. Brodkin will not espouse the theory that all exposures to asbestos, regardless of dose, are causative. In his depositions in this and other cases, Dr. Brodkin has explicitly rejected a "single fiber" theory of causation and the idea any minimal exposure to asbestos fibers is a cause of mesothelioma. His opinion is that only "significant exposures" to asbestos should be considered causes of mesothelioma.
In reaching the conclusion that Mr. Quirin experienced a "significant exposure" to asbestos contained in products manufactured or supplied by Georgia-Pacific, Dr. Brodkin considered that Mr. Quirin worked as a telephone installer for nine years, from 1957 to 1966. (Pl.'s Expert Reports Attach. 5 (Brodkin Report) Ex. 1 (Med. Evaluation Report) 18.) During that time, he performed "hands-on" installation of telephone services, such as running internal telephone wires in walls. ( Id. ) He continued to work on job sites as a supervisor from 1967 to 1986. ( Id. at 19.) While installing telephone lines and supervising such installation, he sometimes worked in proximity to other tradespersons, including drywallers, on construction sites. ( Id. at 20.) Mr. Quirin recalled that "many times" he observed drywallers mixing joint compound, sanding drywall seams, and sweeping dust. ( Id. at 24.) He recalled that U.S. Gypsum and Georgia-Pacific were the dominant brand names he observed on job sites. ( Id. at 25.) Based on this history, Dr. Brodkin concluded that Mr. Quirin experienced significant bystander exposure to drywall joint compound between 1957 and 1977, when asbestos was largely removed from drywall joint compounds. ( Id. at 24.) Dr. Brodkin described this as twenty years of "cumulative exposure." ( Id. at 51.) He stated during his deposition that Mr. Quirin's exposure was less than the workers who directly used joint compound, but that bystander exposure could be "significant, " depending on its duration and the distance to the material containing asbestos. (Pl.'s Expert Reports Attach. 5 (Brodkin Report) Ex. 5 (Brodkin Dep.) 67:19-21.)
Based on a careful reading of Dr. Brodkin's report, the court concludes that Dr. Brodkin's opinion is not that any minimal exposure to asbestos fibers is a cause of mesothelioma, but that Mr. Quirin's regular exposure to drywall joint compound over a twenty-year period should be considered a "significant" exposure that contributed to his mesothelioma. A district court in Washington recently allowed Dr. Brodkin to offer the opinion that each "identified exposure" was a substantial cause of injury. Lipson v. On Marine Servs. Co., No. C1301747 TSZ, 2013 WL 6536923, at *43 (W.D. Wash. Dec. 13, 2013) ("The Court is satisfied that Dr. Brodkin's opinions are based on a sound ...