Transferred from the Western District of Washington CIVIL ACTION NO. 10-cv-61118
The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge
Richard and Lillian Anderson (collectively "Plaintiffs"), husband and wife, filed this asbestos personal injury action in the Superior Court of Washington for Pierce County on September 3, 2009, asserting claims against multiple parties including defendant Salmon Bay and Gravel Company, Inc. (alternatively "Salmon Bay" or "Defendant"), a Seattle-area retailer of tools and construction supplies. The matter was removed to the United States District Court for the Western District of Washington and then, on February 8, 2010, transferred to the Eastern District of Pennsylvania to be included in the multi-district Asbestos Liability Litigation (MDL 875). (Docs. 1, 2.)
Presently before the Court is Salmon Bay's "Motion to Preclude Certain Testimony of Experts Sam Hammar, MD, Andrew Brodkin, MD and Arnold Brody, MD" (Doc. 41) ("Motion"), Plaintiffs' Response (Doc. 49) ("Resp.") and Salmon Bay's Reply (Doc. 81) ("Reply"). Oral argument was heard on November 17, 2010, and the motion is now ripe for review.
II. The "Every Exposure" Opinion
Defendant asks this Court to preclude Plaintiffs' experts Drs. Hammar, Brodkin and Brody from offering "the opinion that any exposure to asbestos above 'background' is a significant contributing factor" to the development of Mr. Anderson's mesothelioma. (Motion at
1.)Preliminarily, we note that the admissibility standard embodied in the Rules of Evidence applies only to the particular opinions to be offered by an expert in the case in which they will be called to testify. See FED. R. EVID. 702. We may therefore consider Defendant's arguments only to the extent they apply to Plaintiffs' particular expert opinions, and find it necessary to first clarify the opinion(s) offered by the experts the Defendant has challenged. This clarification is particularly important in light of Plaintiffs' assertion that only Dr. Hammar has offered the opinion challenged by Defendant.
First, with regard to Dr. Brodkin, Plaintiffs have submitted an affidavit wherein Dr. Brodkin states unequivocally that it is not his opinion that each exposure above background is a significant contributing factor to the development of mesothelioma. (Brodkin Decl. [Doc. 49-1] at ¶ 4.) Rather, he has opined that "the identified occupational and environmental asbestos exposures in Mr. Anderson's case, specifically those associated with his work as a career cement mason, environmental use of asbestos-containing drywall joint compound and friction products, were of high concentration - far exceeding ambient levels - sufficient to overcome the body's respiratory defense mechanisms and adding to Mr. Anderson's lung burden of asbestos." (Id. at ¶ 6 (emphasis in original).) We have reviewed his report, and find that it confirms what Dr. Brodkin states in his affidavit. (See Brodkin Report [Doc. 43] at 31.) We therefore conclude, based on Dr. Brodkin's affidavit and expert report, that he has not offered the opinion challenged by Defendant. Defendant's arguments against the admissibility of that opinion are therefore inapplicable to Dr. Brodkin's testimony.
Second, with regard to Dr. Brody, Plaintiffs state that he was provided no case-specific materials and offers opinions only as to general causation. (Resp. at 5.) Plaintiffs also allege that Dr. Brody did not express the challenged opinion in either his report or at deposition. (Id.) Unfortunately, no party has made any of Dr. Brody's materials (i.e. his expert report or a transcript of his deposition testimony) a part of the record. Accordingly, we are unable determine what opinions he has offered or evaluate the reliability of those opinions or the validity of Defendant's arguments for preclusion of his testimony.
We are therefore left to consider the expert opinions offered by Dr. Hammar, who is Plaintiffs' specific causation expert. He was also the pathologist who diagnosed Mr. Anderson's mesothelioma, and has been familiar with his illness since early in its progression. (Hammar Decl. [Doc. 49-2] at ¶ 5.) He opines that "every occupational and bystander exposure to asbestos above background was a substantial contributing factor in causing Mr. Anderson's ... mesothelioma." (Motion Ex. 5 [Doc. 43-3] at ¶ 19) (hereinafter "Hammar Report.") In reaching that conclusion, Dr. Hammar considered Mr. Anderson's medical records, pathology slides and the "exposure history" provided to him by Plaintiffs' counsel. (See Hammar Report.) He then applied his opinions regarding the nature of mesothelioma and other asbestos-related diseases, and the asbestos exposures necessary to cause them, in order to render specific opinions with regard to Mr. Anderson.
Dr. Hammar's general opinion is that where an individual has been diagnosed with mesothelioma, all asbestos exposures above "background" must be considered "substantial factors" in the development of that mesothelioma. This conclusion is derived from several other scientific opinions, which are supported by various studies, articles and other published materials. As the principal focus of Defendant's motion is the reliability of Dr. Hammar's final conclusion, we find it necessary to examine the precepts which underlie it.
Dr. Hammar first opines that the risk of contracting mesothelioma is dependent upon the cumulative exposure to asbestos a particular individual has suffered. In other words, "the greater the exposure to asbestos or inhalation of asbestos, the greater the risk is of developing mesothelioma." (Hammar Decl. at ¶ 13.) We do not understand Defendant's motion to challenge this fundamental precept.
He next opines that susceptibility to asbestos-related disease varies within the population and the dose of asbestos necessary to cause the disease is different for each individual, and largely dependent upon genetic predisposition. (Hammar Decl. at ¶¶ 8-9.) Dr. Hammar supports this opinion by discussing his own research, conducted with Dr. Ronald Dodson, where they examined the lung tissue of individuals with mesothelioma and found "a wide range of concentrations of asbestos fibers/bodies." (Id.) He also provides citations to several published articles supporting the opinion that susceptibility to asbestos-related disease varies according to genetics. (Id. at ¶¶ 9-11 (citing Neri M., et al. Genetic Susceptibility to Malignant Pleural Mesothelioma and Other Asbestos-Associated Diseases, 659 Mutat Res 126-36 (2008); Bockus D., et al., Familial Mesothelioma: a Report of Two Families, 20 Human Pathol 107-12 (1989); Hillerdal G., Mesotherlioma: Cases Associated with Non-Occupational and Low Dose Exposures, 56 Occup Environ Med 506-13 (1999); Polan, et al., Non-occupational Exposure to Asbestos and Malignant Mesothelioma in Females, 1 Lancet 1061-63 (1978); Goldberg, The Health Impact of Nonoccupational Exposure to Asbestos: What do we know?, European J. Cancer Prevention (2009).) Based on this variation within the population, Dr. ...