Overview of Original Daubert Rulings
In orders issued on October 25, 2022 and November 9, 2022, U.S. District Court Judge Loretta Biggs provided some clarification to her prior expert rulings in the matter of Walls v. Ford Motor Company, et al., a mesothelioma wrongful death case pending in the Middle District of North Carolina. The plaintiff, Laura Walls, alleges that her deceased husband, Robie Walls, developed mesothelioma as a result of exposure to asbestos-containing products through his naval service and career as a truck mechanic. The plaintiff intends to call several experts to offer opinions that the defendants’ products caused the decedent’s disease. The defendants intend to introduce expert testimony that friction products made with chrysotile asbestos did not and could not have caused the alleged injury while asserting that the decedent sustained significant exposure to asbestos during his naval service. The Court took up the parties’ various Daubert challenges over two days of oral argument in June 2022 and made several significant rulings regarding expert admissibility on August 11, 2022 as discussed herein.
The Court ruled that the plaintiff’s experts: epidemiologist Dr. Murray Finkelstein, industrial hygienist Dr. Edwin Holstein, and pathologist Dr. John Maddox, are qualified to offer general causation opinions, including that there is no safe dose of exposure to asbestos and that asbestos in automotive friction products can cause mesothelioma. While the ruling acknowledged disagreement between the parties’ experts as to whether low dose exposure to chrysotile asbestos can cause disease, the Court ultimately will allow Dr. Maddox and Dr. Holstein’s opinions that there is no safe dose. Notably, the Court was persuaded that such opinions are generally “accepted within the relevant scientific community,” based on the plaintiff’s experts’ reliance on publications of various governmental agencies, such as the EPA, OSHA, and NIOSH.
With regard to specific causation, the Court will allow Dr. Holstein and Dr. Maddox to opine that each of the defendant’s products contributed to the decedent’s mesothelioma but will exclude opinions that each of the defendant’s products was a “substantial factor” in causing the decedent’s disease. Further, the Court granted the defendants’ motion to exclude both the specific causation and substantial factor opinions of Dr. Finkelstein. The Court found that Dr. Finkelstein provided little explanation for his methodology and failed to evaluate exposure to the defendants’ products individually.
As to the defendants’ experts, the Court granted the plaintiff’s motion to exclude the defendants’ naval experts: U.S. Navy Captain Margaret McCloskey and Christopher Herfel. The Court determined that their exposure opinions “are speculative and not based on sufficient facts or data.” The Court further ruled that testimony by McCloskey and Herfel as to the presence of asbestos on the ships the decedent served would be duplicative of the Decedent’s testimony and would not aid the jury. The Court additionally ruled in the plaintiff’s favor by excluding certain expert testimony by pathologist Dr. Tim Oury and pulmonologist Dr. James Crapo. In particular, the Court ruled that Dr. Oury and Dr. Crapo will not be permitted to testify that exposure to automotive friction products categorically cannot cause mesothelioma because the Court did not find that Dr. Oury or Dr. Crapo offered sufficient scientific basis for such opinions in their reports. The Court will, however, allow defense experts Dr. Fionna Mowat (biomedical engineer/risk assessment) and epidemiologist Dr. Dominik Alexander to offer similar opinions, which it found to be reliable and sufficiently supported.
The Court also granted the plaintiff’s motions to exclude defense expert testimony that exposures below a specified range do not increase the risk of mesothelioma as well as testimony quantifying the potency difference between different types of asbestos fibers. The Court was persuaded by the plaintiff’s arguments that such opinions are lacking in mathematical precision and based on unreliable methodology.
Finally, while not strictly a Daubert challenge, the Court considered and denied the plaintiff’s motion to preclude cross-examination of her experts on “manufactured chrysotile.” The Court pointed out that such inquiries may be relevant to allow the defendants to challenge the reliability and credibility of the plaintiff’s experts’ opinions in cross-examination and would not be excluded pre-trial.
Following the Court’s rulings, several of the defendants requested that the Court reconsider or otherwise clarify its rulings as to the testimony of experts Herfel, McCloskey, and Dr. Crapo. The defendants specifically asked that the naval experts be permitted to provide testimony authenticating U.S. Navy documents at trial. They further argued that Dr. Crapo did not intend to opine that chrysotile categorically cannot cause mesothelioma, but rather that the decedent’s exposures to chrysotile could not have caused mesothelioma. The plaintiff also sought leave to supplement the record regarding Dr. Holstein in response to the defendants’ Daubert motions.
Recent Order Clarifying Rulings
In recent rulings on both the defendants’ motions to reconsider and the plaintiff’s motion for leave to supplement the record in opposition to the defendants’ motions against Dr. Holstein, the Court largely stood by its prior rulings. However, the Court did offer some notable clarification on the rulings. The Court clarified that the defendants’ naval experts Herfel and McCloskey will be permitted to offer testimony as to authentication of U.S. Navy documents if appropriate, but the Court maintained its prior ruling as to other limitations in their testimony. Further, as to Dr. Crapo, the Court clarified that its prior order should have noted that the plaintiff’s motion was “granted in part and denied in part.” The Court further added that should Dr. Crapo’s proffered testimony not specifically opine that chrysotile asbestos categorically cannot cause mesothelioma, the testimony would be compliant with the Court’s order and be permitted subject to other objections. The Court declined to reconsider other aspects of its rulings as to the defendants’ experts. The Court additionally denied the plaintiff’s request to supplement the record in support of Dr. Holstein’s opinions, which it noted would simply allow for impermissible, unlimited bolstering of the expert’s opinions.