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Quirin v. Lorillard Tobacco Co.

United States District Court, N.D. Illinois, Eastern Division

March 7, 2014

MARILYN F. QUIRIN, Special Representative of the Estate of RONALD J. QUIRIN, Deceased, Plaintiff,
v.
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 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, work practice studies, and Tyndall lighting videotapes by Quirin's expert Dr. James R. Millette, Ph.D. As Quirin has agreed not to use Dr. Millette's videotapes at trial, that portion of Georgia-Pacific's motion is granted as unopposed. The court holds that the testimony and work practice studies are admissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and denies the motion with respect to that evidence.

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 must ensure "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 prevent an expert from 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. ANALYSIS

Having reviewed the parties' submissions, the court concludes that a Daubert hearing on Georgia-Pacific's motion is unnecessary. The court first finds that Dr. Millette is qualified to offer an opinion regarding fiber release from products containing asbestos. Dr. Millette is Executive Director of MVA Scientific Consultants ("MVA"), an independent analytical testing lab and consulting company. He has a Ph.D. in Environmental Science and has been a consulting scientist involved in environmental, particle, and materials studies since 1972, primarily employing microscopic techniques. He spent eleven years as a research scientist with the U.S. Environmental Protection Agency and five years with at McCrone Environmental Services, where he supervised the analysis of particulates using microscopic techniques. Dr. Millette teaches a training course on analyzing samples for asbestos fibers. He has testified in numerous court cases involving fiber release from asbestos-containing products.

The court further concludes that Dr. Millette's "scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, " as required by Rule 702. The issue of whether respirable asbestos fibers released from Georgia-Pacific joint compound were present in the air at Mr. Quirin's worksites in sufficient quantities to constitute a cause of his mesothelioma is critical to Quirin's case. Lay persons will be unable to resolve this issue without scientific evidence.

The court next turns to the question of whether Dr. Millette's reports and testimony are based on reliable methodology.

A. Dr. Millette's Expert Report

Dr. Millette's expert report includes several opinions related to Georgia-Pacific joint compound. It states that the joint compound contained approximately eight percent asbestos, as measured by his laboratory. It further states that by "working around drywall workers who mixed, sanded and cleaned-up joint compound, " Mr. Quirin "was exposed to respirable asbestos fibers." (Pl.'s Expert Reports Ex. 4 (Millette Report) 8, ECF No. 82-4.) Dr. Millette further explained,

The concentrations of asbestos from drywall joint compound to which Mr. Quirin was exposed varied depending primarily on the specific activity the drywallers were performing and the distance Mr. Quirin was from the activity. It is my opinion that Mr. Quirin would have been exposed to ...

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