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In Re: Asbestos Products Liability Litigation (No. Vi v. Air & Liquid Systems Corporation

January 25, 2012

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI) VALENT RABOVSKY AND ANN RABOVSKY, PLAINTIFFS,
v.
AIR & LIQUID SYSTEMS CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge

MEMORANDUM OPINION

This Document Relates To

I. Introduction

Valent and Ann Rabovsky (collectively "Plaintiffs"), husband and wife, filed this asbestos personal injury action in the Court of Common Pleas of Philadelphia County on March 30, 2010, asserting claims against multiple parties. (Doc. 1.) On July 1, 2010, the matter was removed to the United States District Court for the Eastern District of Pennsylvania and included in the multi-district Asbestos Liability Litigation (MDL 875). (Id.)

The underlying claims are that Plaintiff Valent Rabovsky was exposed to asbestos over various periods between the 1950s and 1980s, causing him to suffer from the disease of mesothelioma. Plaintiffs allege that this exposure occurred while he was working as a millwright and came to be in regular contact with asbestos-containing valves, pumps, gaskets, boilers and other products manufactured by multiple Defendants, including Goulds Pumps, Inc. ("Goulds") and Crane Co. (See, e.g. Doc. 125, at 4.)

Presently before the Court is Goulds's Motion in Limine to Preclude or Limit Plaintiffs' Experts' Testimony Based on Daubert v. Merrell Dow Pharmaceuticals (Doc. 109), several defendants' motions adopting the same,*fn1 together with Plaintiffs' Response (Doc. 125) and Goulds' Reply (Doc. 138). Also, presently before the Court is Crane Co.'s Motion in Limine to Exclude the "Each and Every Exposure" Opinion (Doc. 115), two defendants' motions adopting it,*fn2 together with Plaintiffs' Response (Doc. 125), Crane Co.'s Reply (Doc. 142), and Crane Co.'s Supplemental Memorandum of Law on Plaintiffs' Causation Evidence (Doc. 171). Oral argument was heard on January 19, 2012 and the motions are now ripe for review. For the following reasons, Defendants' motions are DENIED.

II. Motions under Review

Goulds challenges, under Fed. R. Evid. 702 and Daubert, the expert opinions of John Maddox, M.D., Arnold Brody, Ph.D., and Edwin Holstein, M.D., that Defendants' products caused or contributed to Mr. Rabovsky's mesothelioma. In its separate motion, Crane Co. challenges the expert opinions of Drs. Maddox and Brody only.*fn3 (Doc. 115.) The issue before us, focusing principally upon the question of reliability, is whether the experts' opinions are admissible.

Dr. Maddox, Dr. Holstein and Dr. Brody each seek to offer opinions dealing with certain aspects of the question of whether "each and every exposure" to asbestos above background levels increases the risk of mesothelioma. Dr. Maddox, a board-certified anatomical and clinical pathologist, has opined, "'[w]ith a reasonable degree of medical certainty, that each and every exposure to asbestos above background levels that Mr. Rabovsky sustained was a significant contributing factor in the development of his mesothelioma.'" Expert Report of John C. Maddox, M.D., July 13, 2011, at 23. Dr. Holstein, who is Board Certified in Occupational Medicine and Preventative Medicine, has written that "each inhalation of asbestos-containing dust from the use of products (other than the purely ambient exposure from urban dwelling) has been shown to contribute to cause asbestos-related disease including pleural mesothelioma." Report of Edwin C. Holstein, M.D., July 21, 2011, at 15. Dr. Brody, a cell biologist who specializes in the biological mechanisms of the disease, has stated that "[e]ach and every exposure to asbestos that an individual with mesothelioma experienced in excess of a background level contributes to the development of the disease." Expert Report of Arnold R. Brody, Ph.D., April 25, 2010, at 20.

Goulds and Crane Co., and those who join in their motions, allege that these opinions "lack the requisite reliability and validity and, consequently, the necessary scientific methodology mandated under Daubert and the Federal Rules of Evidence 702 and 703," to even be presented to the fact-finder. (Doc. 109, at 3. See also Doc. 115 at 4.) Denouncing the theories as "legal invention[s]," (Doc. 109 at 9) and the product of "invalid science," (Doc. 115 at 4) Defendants specifically take issue with the fact that the opinions have not been tested or subjected to the scientific method, such that their accuracy cannot be determined. (Doc. 109 at 9. See also Doc. 115 at 11-14 (describing the opinion as "a hypothesis, not a result.").) Defendants further claim that the experts have not offered any specific conclusions causally linking their products to Mr. Rabovsky's mesothelioma and cite to Pennsylvania and other case law deeming inadmissible similar opinions offered in other cases. (See, e.g. Doc. 115 at 5, 9-11, 14. See also Doc. 109, at 5, 6, 11, 12-14.) Finally, Defendants argue that the causation standard for asbestos cases is higher than what Plaintiffs' experts opine and that rather than merely contributing to the development of a disease, the alleged exposures must "substantially contribute" to the mesothelioma risk. (See, e.g. Doc. 138, at 11, Doc. 115 at 2, 5, 9.) Accordingly, Defendants seek to preclude the experts from testifying that Mr. Rabovsky's exposure to their products was a substantial contributing factor to his mesothelioma.*fn4

III. Legal Standard

The standard for the admissibility of expert testimony is set forth in Fed. R. Evid.702, as interpreted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702 provides that an expert opinion is admissible to assist the trier of fact to understand evidence if (1) "the testimony is based upon sufficient facts or data;" (2) "the testimony is the product of reliable principles and methods; and" (3) "the expert has reliably applied the principles and methods to the facts of the case." The Third Circuit specifically has described Rule 702 as requiring three elements: "'(1) the proffered witness must be an expert, i.e., must be qualified; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge [, i.e. reliability]; and (3) the expert's testimony must assist the trier of fact [, i.e. fit].'" United States v. Schiff, 602 F.3d 152, 172 (3d Cir. April 7, 2010) (quoting Pineda v. Ford Motor Co., 502 F.3d 237, 243-44 (3d Cir. 2008)). As is the case with regard to the Federal Rules of Evidence generally, Rule 702 is to be interpreted liberally in favor of admission in that "[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. 579 at 596.

Defendants challenge the experts' opinions principally under the "reliability" prong of Rule 702. Daubert sets out four factors to help the federal courts evaluate the reliability of expert opinions, based on an analysis of whether the theory or technique proffered by the expert: 1) has been or can be tested; 2) has been subjected to peer review and publication; 3) has an ascertainable rate of error; and 4) is generally accepted by "'a relevant scientific community.'" Id. at 593-594. The Third Circuit has added additional factors which may further guide a court's admissibility determination, including "the relationship of the technique to methods which have been established to be reliable;...the qualifications of the expert testifying based on the methodology; and...the non-judicial uses to which the method has been put." See Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742, n.8 (3d Cir. 1994).

Federal courts are accorded a great deal of flexibility in this analysis. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). The Third Circuit specifically has determined that "even if the judge thinks that there are better grounds for some alternative conclusion, and even if the judge thinks that a scientist's methodology has some flaws such that if they had been corrected, the scientist would have reached a ...


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