Plaintiff's Expert Opinions on Causation, Historical Literature, and “Cumulative Exposure Theory” Precluded – Lexology

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U.S. District Court for the Northern District of Illinois, Eastern Division, November 23, 2021
The plaintiff alleged that her late husband, Bruce Johnson, was exposed to asbestos between 1971 and 1984 while working with ceramics for different companies and schools. Mr. Johnson was diagnosed with mesothelioma in 2017 and died in 2020. The plaintiff filed suit against Vanderbilt, inter alia, alleging that Vanderbilt was liable under a negligent products liability theory for manufacturing, distributing, or selling asbestos-containing products used in the production of ceramics. Prior to trial, Vanderbilt moved to preclude several of the plaintiff’s experts.
Dr. Arthur Frank
Vanderbilt moved to exclude the opinions of the plaintiff’s medical expert, Dr. Arthur Frank, and any reference or argument as to the “cumulative exposure theory.” The court granted the motion, finding that Krik v. Exxon Mobil Corp., 870 F.3d 669 (7th Cir. 2017) forecloses Dr. Frank’s testimony in this case, as his causation opinions based upon the “each and every exposure theory” failed to pass muster under Daubert when he did not consider how much asbestos exposure the plaintiff experienced as to each defendant or whether a particular dosage could have been a substantial contributing factor to lung cancer.
Monona Rossol
Vanderbilt also moved to exclude the testimony of Monona Rossol, regarding causation, dose, or mineralogy. The plaintiff conceded that Rossol would not offer any opinions as to causation, dose, or mineralogy, and that she would limit her opinions to her area of expertise—ceramics. Given this, the court granted this motion “as agreed.”
Dr. Barry Castleman
Next, Vanderbilt moved to limit the plaintiff’s expert Dr. Barry Castleman’s testimony to his review of historical asbestos literature and to preclude him from offering opinions regarding Vanderbilt’s state of mind, Vanderbilt’s knowledge of talc health effects, and talc causation.
In response, the plaintiff argued that Dr. Castleman would not be speaking on specific causation or diagnoses, and would instead testify on the development of the awareness of the hazards of asbestos in the scientific and technical community. Plaintiff asserted, however, that Dr. Castleman would go beyond general state of the art testimony and testify as to his opinions on when Vanderbilt knew about the dangers of asbestos and what it did with that knowledge.
The court granted Vanderbilt’s motion and ruled that Dr. Castleman’s testimony should be precluded as it lacked the requisite foundation to testify about what Vanderbilt knew at any given time regarding asbestos.
Dr. William Longo
Vanderbilt also moved to exclude the plaintiff’s expert Dr. William Longo’s talc sampling study and accompanying video, on the basis that the plaintiff failed to establish a proper chain of custody for the evidence, as Longo had not provided the sample of talc he used in his study.
The court denied this motion, finding that Vanderbilt had only offered the possibility of tampering or accidental substitution, and had not offered any specific evidence that would require preclusion.
Dr. Theresa Emory
Vanderbilt moved to preclude the plaintiff’s expert, Dr. Theresa Emory, from offering her opinion regarding talc causation, specifically any testimony regarding whether Vanderbilt’s talc contains asbestos, or that Vanderbilt’s talc can cause mesothelioma, and any opinion that Vanderbilt’s talc caused the decedent’s mesothelioma in this case, and to limit her testimony to diagnosis of disease. Vanderbilt argued that Dr. Emory’s testimony should be precluded because she stated that she assumed that Vanderbilt’s talc contained asbestos on the basis of Dr. Long’s expert report.
The court also denied this motion, noting that Rule 702 permits an expert to assume facts established by other experts.
Read the full decision here.
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