Bell v. Foster Wheeler Energy Corp. (E.D. La., Mar. 6, 2017, evidence ruling, order 1)

Our plain-English summary of Bell v. Foster Wheeler Energy Corp. (U.S. District Court, Eastern District of Louisiana, March 6, 2017).

William Bell developed mesothelioma, and he and family members sued Foster Wheeler and other equipment makers in federal court in Louisiana under general maritime law. The court had earlier excluded the opinions of three plaintiff experts (Dr. Kraus, Dr. Kradin and Mr. Parker) that a particular defendant's product caused Bell's disease. The plaintiffs asked the court to reconsider. The court denied the motion. It explained that it did not rule out specific causation opinions in multi-defendant mesothelioma cases. But these opinions rested on population studies showing that certain exposure levels can cause the disease, and that showed only that low exposures could have caused Bell's illness, not that they did. Bell was exposed to several kinds of asbestos from several defendants on many occasions. The experts may still testify about general causation and Bell's mesothelioma. They may say studies find certain exposures statistically significant, but may not give a disguised opinion on specific causation.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Eastern District of Louisiana
• Decided: March 6, 2017
• Docket: Civil Action No. 15-6394
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. The court denied the plaintiffs' motion for reconsideration, leaving in place its exclusion of their experts' specific causation opinions, and clarified what the experts may say at trial.

What the court held. Under general maritime law, an expert's specific causation opinion in a multi-defendant mesothelioma case is unreliable under Rule 702 if it rests only on population-level studies of exposure levels and not on the plaintiff's own exposure history. Experts may still testify on general causation and on what studies show, but may not offer a backdoor specific causation opinion.

Issues decided: Causation, Expert Testimony, Maritime Law and Navy Ships, Trial Procedure and Discovery.

The people and their exposure

• Mr. Bell: mesothelioma

Who	Work	Where	When	Products
Mr. Bell

The defendants

• Foster Wheeler Energy Corp. (manufacturer)
• CBS Corporation (manufacturer)
• General Electric Company (manufacturer)
• IMO Industries, Inc. (manufacturer)
• Warren Pumps, LLC (manufacturer)
• Crane Company (manufacturer)
• Air & Liquid Systems Corporation (manufacturer)
• Aurora Pump Company (manufacturer)
• Atwood & Morrill Co., Inc. (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Bell v. Foster Wheeler Energy Corp. (October 4, 2016). The court denied without prejudice the ten defendants' summary judgment motions, set out its own maritime-law standard for manufacturer liability for asbestos it did not add to its product, and ordered the defendants to re-file briefs under that standard.
• Bell v. Foster Wheeler Energy Corp. (October 6, 2016). The court granted in part and denied in part the defendants' motions in limine: it excluded the plaintiffs' experts' specific causation opinions as unreliable but allowed them to testify on Mr. Bell's mesothelioma and general causation, and refused to strike Dr. Kradin or disqualify Dr. Kraus.
• Bell v. Foster Wheeler Energy Corp. (October 11, 2016). The court granted in part and denied in part the pump and valve defendants' motion to exclude studies and videos from plaintiffs' expert Dr. James Millette: most of his study testimony was allowed, but he may not call a study representative of Mr. Bell's likely exposure without a threshold showing, and the challenge to his videos was denied as premature.
• Bell v. Foster Wheeler Energy Corp. (October 12, 2016). The court denied the defendants' motion to strike John Croix from the plaintiffs' witness list, allowed defendants to depose him, and allowed them to seek leave to supplement their expert reports.
• Bell v. Foster Wheeler Energy Corp. (March 6, 2017). The court ruled that, for the Idaho exposures, Louisiana law governs the survival claim (favoring the Bell plaintiffs) and Idaho law governs punitive damages on the wrongful death claim (favoring the defendants).
• Bell v. Foster Wheeler Energy Corp. (March 6, 2017). The court granted summary judgment to York International and Foster Wheeler Energy and dismissed the claims against them with prejudice, and denied summary judgment to General Electric, Crane, Air & Liquid Systems (Buffalo), Aurora Pump, Atwood & Morrill, CBS, IMO Industries and Warren Pumps.
• Bell v. Foster Wheeler Energy Corp. (March 6, 2017). The court granted in part and denied in part the plaintiffs' Daubert motions: defense experts Dr. Graham and Dr. Taragin may give general causation testimony but not specific causation opinions that the defendants' products did not cause Mr. Bell's mesothelioma.
• Bell v. Foster Wheeler Energy Corp. (March 6, 2017). The court granted in part and denied in part the defendants' partial summary judgment motion: it dismissed Vickie Campos's individual claims and John Bell's nonpecuniary wrongful death damages, but allowed the survival claim, Bell's pecuniary wrongful death claim, and the decedent's pre-death pain and suffering damages to proceed.
• Bell v. Foster Wheeler Energy Corp. (March 13, 2017). The court ruled that Louisiana law, not Idaho law, governs both the survival claim and the wrongful death claim (including punitive damages) for the alleged Idaho exposures, favoring the plaintiffs' position on choice of law.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Comardelle v. Pennsylvania General Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2015). The district court granted Amchem's (Bayer CropScience's) motion and barred plaintiffs' expert Dr. Hammar from giving "every exposure" specific-causation testimony that Comardelle's mesothelioma was caused by Benjamin Foster 81-27 or any other particular exposure.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (U.S. District Court, Eastern District of Louisiana, 2015). The court granted in part and denied in part the defendants' motions to exclude Dr. Kraus: he was qualified and could testify on diagnosis and general causation, but could not give specific causation opinions based on the "every exposure above background" theory.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

WILLIAM C. BELL ET AL.,

v.

FOSTER WHEELER ENERGY CORP. ET AL. SECTION 1.

Civil Action No. 15-6394.

March 6, 2017.

United States District Court, E.D. Louisiana.

Vickie G. Campos, Plaintiff, represented by Gerolyn Petit Roussel, Roussel & Clement.

Vickie G. Campos, Plaintiff, represented by Benjamin Peter Dinehart, Roussel & Clement, Jonathan Brett Clement, Roussel & Clement, Lauren Roussel Clement, Roussel & Clement & Perry Joseph Roussel, Jr., Roussel & Clement.

John A. Bell, Jr., Plaintiff, represented by Gerolyn Petit Roussel, Roussel & Clement, Benjamin Peter Dinehart, Roussel & Clement, Jonathan Brett Clement, Roussel & Clement, Lauren Roussel Clement, Roussel & Clement & Perry Joseph Roussel, Jr., Roussel & Clement.

CBS Corporation, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Christopher Conley, Evert Weathersby Houff, pro hac vice, James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C., Peter R. Tafaro, Frilot L.L.C., Robert P. Morgan, Eckert Seamans Cherin & Mellott, LLC, pro hac vice & William Davis Harvard, Evert Weathersby Houff.

General Electric Company, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Erik Nadolink, Wheeler Trigg O'Donnell, LLP, pro hac vice, James H. Brown, Jr., Frilot L.L.C., John M. Fitzpatrick, Wheeler Trigg O'Donnell, LLP, pro hac vice, John A. Heller, Sidley Austin, LLP, pro hac vice, Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C., Nathan P. Murphy, Wheeler Trigg O'Donnell, LLP, pro hac vice & Peter R. Tafaro, Frilot L.L.C.. IMO Industries, Inc., Defendant, represented by Leigh Ann Tschirn Schell, Kuchler Polk Schell Weiner & Richeson, LLC, Bobbie Bailey, Leader and Berkon LLP, pro hac vice, Caroline Curtiss Marino, Leader & Berkon LLP, pro hac vice, Joseph Henry Hart, IV, Pugh & Accardo, Attorneys at Law, Lori Allen Waters, Irpino, Avin & Hawkins, Magali Ann Puente-Martin, Frilot L.L.C. & Thomas A. Porteous, Pugh, Accardo, Haas, Radecker & Carey.

Warren Pumps, LLC, Defendant, represented by Leigh Ann Tschirn Schell, Kuchler Polk Schell Weiner & Richeson, LLC, Joseph Henry Hart, IV, Pugh & Accardo, Attorneys at Law, Judith Ann Perritano, Pierce Davis & Perritano LLP, pro hac vice, Lori Allen Waters, Irpino, Avin & Hawkins, Magali Ann Puente-Martin, Frilot L.L.C., Maria E. DeLuzio, Pierce Davis & Perritano LLP, pro hac vice & Thomas A. Porteous, Pugh, Accardo, Haas, Radecker & Carey.

Crane Company, Defendant, represented by Aleta W. Barnes, Dogan & Wilkinson, PLLC, Barry C. Campbell, Dogan & Wilkinson, PLLC, Hanson Douglas Horn, Dogan & Wilkinson, PLLC, James B. Insco, K&L Gates LLP, pro hac vice, Kevin M. Melchi, Dogan & Wilkinson, PLLC, Michael J.R. Schalk, K&L Gates LLP, pro hac vice, Michael J. Sechler, K&L Gates LLP, pro hac vice & Robert W. Wilkinson, Dogan & Wilkinson, PLLC, pro hac vice.

Air & Liquid Systems Corporation, Defendant, represented by Stacey Leigh Strain, Hubbard, Mitchell, Williams & Strain, PLLC, Brady L. Green, Wilbraham, Lawler & Buba, PC, pro hac vice, Edward Joseph White, Wilbraham, Lawler & Buba, PC, pro hac vice & Jeffrey P. Hubbard, Hubbard, Mitchell, Williams & Strain, PLLC, pro hac vice.

Aurora Pump Company, Defendant, represented by Jennifer E. Adams, Deutsch, Kerrigan & Stiles, LLP, Arthur Wendel Stout, III, Deutsch, Kerrigan & Stiles, LLP, Barbara Bourgeois Ormsby, Deutsch, Kerrigan & Stiles, LLP, David M. Katzenstein, Eckert Seamans Cherin & Mellott, LLC, pro hac vice, Jason P. Franco, Cardone Law Firm & William Claudy Harrison, Jr., Deutsch, Kerrigan & Stiles, LLP.

Atwood & Morrill Co., Inc., Defendant, represented by Jennifer E. Adams, Deutsch, Kerrigan & Stiles, LLP, Arthur Wendel Stout, III, Deutsch, Kerrigan & Stiles, LLP, Barbara Bourgeois Ormsby, Deutsch, Kerrigan & Stiles, LLP, Jason P. Franco, Cardone Law Firm & William Claudy Harrison, Jr., Deutsch, Kerrigan & Stiles, LLP.

ORDER AND REASONS

LANCE M. AFRICK, District Judge.

Before the Court is the plaintiffs' motion[1] for reconsideration of this Court's order[2] excluding the specific causation opinions of plaintiffs' medical experts. In its previous order, the Court ruled:

The Court will not allow plaintiffs' experts to entirely rely on evidence of general causation to offer the "specific causation opinion in this case" that a particular product caused Mr. Bell's mesothelioma.

[Comardelle v. Penn. Gen. Ins. Co., 76 F. Supp. 3d 628, 635 (E.D. La. 2015)]. Dr. Kraus's, Dr. Kradin's, and Mr. Parker's opinions on specific causation are unreliable and must be excluded under Rule 702. However, the plaintiffs' experts may testify—subject to a potential Rule 403 objection at trial—regarding Mr. Bell's mesothelioma and issues of general causation. [See Vedros v. Northrup Grumman Shipbuilding, Inc., 119 F. Supp. 3d 556, 565 (E.D. La. 2015)]. Likewise, provided that any Rule 403 objections are overcome, the experts may also respond to defendants' argument that certain exposures were de minimis by noting that certain studies suggest that specific causation cannot be ruled out.

R. Doc. No. 358, at 7-8.

The latest round of briefing does not convince the Court that its previous order was in error. Nevertheless, the Court writes again in order to clarify the basis for its ruling, as well as the parameters within which plaintiffs' experts must testify at trial. I.

Reconsideration of interlocutory orders is governed by Rule 54(b) of the Federal Rules of Civil Procedure. McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701 (5th Cir. 2014). "Although the precise standard for evaluating a motion to reconsider under Rule 54(b) is unclear, whether to grant such a motion rests within the discretion of the court." Bernard v. Grefer, No. 14-887, 2015 WL 3485761, at [*5] (E.D. La. June 2, 2015) (Fallon, J.). The general practice of courts in this district has been to evaluate motions to reconsider interlocutory orders under the same standards that govern Rule 59(e) motions to alter or amend a final judgment. See Namer v. Scottsdale Ins. Co., 314 F.R.D. 392, 393 (E.D. La. 2016) (Africk, J.). A motion to alter or amend a judgment filed pursuant to Rule 59(e) "serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence." Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989). "A manifest error is not demonstrated by the disappointment of the losing party. It is the wholesale disregard, misapplication, or failure to recognize controlling precedent." Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation omitted).

II.

Under general maritime law, in order to recover against any defendant, the plaintiffs must prove that their injury was "legally caused" by that defendant. Osprey Underwriting Agency, Ltd. v. Nature's Way Marine, L.L.C., 642 F. App'x 391, 394 (5th Cir. 2016). That is, the plaintiffs must prove that exposure to a defendant's asbestos—or to asbestos for which that defendant was otherwise responsible under the rubric set forth in R. Doc. No. 352—was a "substantial factor" in causing Bell's mesothelioma. See id.

The cumulative damage of asbestos exposure is widely recognized. See Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1142 (5th Cir. 1985); Comardelle v. Pennsylvania Gen. Ins. Co., 76 F. Supp. 3d 628, 633 (E.D. La. 2015) (Africk, J.) ("This is referred to as a dose-response relationship in which the more someone is exposed to asbestos, the greater their risk for the development of mesothelioma." (citation omitted)). However, it does not follow that every breath of asbestos dust a person takes is a substantial factor in causing the person to develop mesothelioma. Courts have consistently rejected such "every breath" or "every exposure" theories of causation. See R. Doc. No. 358, at 5. In the same vein, courts have rejected the "every exposure above background" theory of causation, which posits that each and every exposure to asbestos that an individual with mesothelioma experienced in excess of a background level contributes to the development of the disease. See Vedros v. Northrop Grumman Shipbuilding, Inc., 119 F. Supp. 3d 556, 563 (E.D. La. 2015) (Barbier, J.).

So what must an expert in a multi-defendant asbestos lawsuit show in order to offer the opinion that exposure to a defendant's asbestos was a substantial factor in causing the plaintiff's mesothelioma? That is a difficult question, which explains why defendants did not try to answer it in their supplemental briefing despite the Court's direction that they do so. In the Vedros case cited in this Court's previous opinion, Judge Barbier appeared to recognize that an expert could offer the opinion that certain "special exposures" were substantial contributing factors to the plaintiff's mesothelioma, but he simply found that the expert at issue could not do so because he had not conducted a sufficient qualitative evaluatation of the plaintiff's specific history of exposures in formulating his opinion. See Vedros, 119 F. Supp. 3d at 564 (applying Louisiana law) (citing Robertson v. Doug Ashy Bldg. Materials, Inc., 168 So.3d 556 (La. App. 1 Cir. 2014)).

Similarly, in the Rost case relied on heavily by the plaintiffs in their supplemental briefing, the Pennsylvania Supreme Court allowed an expert to testify that the plaintiff's exposure to the defendant's products was "a significant contributing cause" of his development of mesothelioma where the expert opinion was based on a detailed qualitative and quantitative assessment of the nature of the plaintiff's exposure. See Rost v. Ford Motor Co., 2016 WL 6876490, at [*8] (Pa. Nov. 22, 2016) (permitting expert opinion that "Rost's exposures to asbestos at Smith Motors were sufficiently frequent, regular, and proximate to permit the inference that these exposures were substantially causative").[3]

In line with Vedros and Rost, this Court does not rule out the possibility that an expert can offer a specific causation opinion in a multi-defendant mesothelioma case. Rather, the Court is simply of the view that plaintiffs' experts' opinions in this case are not reliable enough to be admitted. The fundamental flaw in the proposed expert opinions is the same flaw that courts have recognized in the "every exposure" and "every exposure above background" theories of causation: they are specific causation opinions untethered to the decedent himself, based only on generalized studies of the effects that certain exposure levels can have on the population. As this Court explained in its first order, "increasing the likelihood of disease is a different matter than actually causing such disease," and evidence that mesothelioma is more prominent in certain populations does not of itself provide a basis for opining as to legal causation. See R. Doc. No. 358, at 7. As an example, Dr. Kradin relies inter alia on a study which showed that exposure levels of 0.002 f/cc were associated with 46 cases of mesothelioma per 1,000,000 people, R. Doc. No. 211-4, at 14, to establish that even low level asbestos exposure can cause mesothelioma, R. Doc. No. 211-4, at 17. But without more of an explanation supported by a reasonable methodology, such studies are insufficient to render a specific causation opinion because they represent little more than a guess as to which group Mr. Bell fits. The fact that Mr. Bell actually developed mesothelioma is not sufficient to plug the analytical gap because he was exposed to multiple forms of asbestos manufactured by multiple defendants on multiple occasions. As such, while the evidence may support the expert opinion that low levels of exposure to a defendant's product could have caused Mr. Bell's mesothelioma, it does not support the conclusion that they did. Of course, if the numbers were different—say 900,000 cases of mesothelioma out of 1,000,000 people—the result could be different as well. The Court expresses no opinion as to the appropriate tipping point.

As plaintiffs repeat throughout their motion, their experts believe based on a review of the evidence and the literature that Bell's exposures exceeded the levels which have been proven to cause mesothelioma. That is an acceptable opinion. What is not acceptable is the next step: the opinion that, because these levels of exposure could cause mesothelioma, they more likely than not did so in this instance.

III.

In sum, Dr. Kraus's, Dr. Kradin's, and Mr. Parker's opinions on specific causation are unreliable and must be excluded under Rule 702. However, the plaintiffs' experts may testify—subject to a potential Rule 403 objection at trial— regarding Mr. Bell's mesothelioma and issues of general causation. Likewise, provided that any Rule 403 objections are overcome, the experts may also respond to defendants' argument that certain exposures were de minimis by noting that certain studies suggest that specific causation cannot be ruled out.

Plaintiffs ask for clarification on this latter point. They ask: "Under this Court's current judgment, are plaintiffs' experts allowed to opine that certain scientific studies suggest that Bell's exposures to defendants' products were significant?" R. Doc. No. 378-1, at 19. They also ask: "Are plaintiffs' experts. . . allowed to offer. . . testimony that the levels to which Bell was exposed to defendants' products are recognized as significant exposures according to the scientific literature?" R. Doc. No. 378-1, at 20.

The answer to both questions is "yes," provided that it is made clear that the term "significant" means only "statistically significant" in the sense that exposure at a certain level for a certain duration can cause x in y number of people to develop mesothelioma. But plaintiffs' counsel should tread carefully in this area, as the Court will not permit a backdoor opinion as to specific causation in the guise of an opinion about what the studies suggest. To the extent counsel believes a question flirts with this line, they should approach the bench for guidance.

IT IS ORDERED that the motion for reconsideration is DENIED as set forth herein.

[1] R. Doc. No. 378.

[2] R. Doc. No. 358.

[3] It is true, as defendants point out, that the Rost decision applied Pennsylvania law and not general maritime law. See 2016 WL 6876490, at [*8]. However, there are no differences between the two laws material to the point the Court is making above.

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites