Comardelle v. Pennsylvania General Ins. Co. (2015)

Our plain-English summary of Comardelle v. Pennsylvania General Ins. Co. (U.S. District Court, Eastern District of Louisiana, January 5, 2015).

Michael Comardelle's widow and children sued several defendants after he died of mesothelioma. They alleged he was exposed to asbestos in products during his work from 1963 through 1979, including an adhesive called Benjamin Foster 81-27, sold by Amchem (Bayer CropScience). Amchem asked the federal court to exclude the opinion of plaintiffs' expert, Dr. Samuel Hammar. Dr. Hammar would have said that every asbestos exposure Comardelle had contributed to his mesothelioma, so the adhesive was a substantial contributing cause. The court applied Rule 702 and Daubert and found the opinion unreliable. It reasoned that the opinion moved from the premise that asbestos exposure raises risk to a conclusion about this man's exposures without tying it to the facts, duration, concentration or fiber type of any exposure. The court noted that Dr. Hammar had acknowledged that a few seconds of drilling would, practically speaking, not be a substantial factor. It granted the motion. Dr. Hammar could still testify about diagnosis and general causation. The court expressed no view on whether other experts could offer reliable opinions.

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: January 5, 2015
• Citation: 76 F.Supp.3d 628
• Docket: Civil Action No. 13-6555
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. 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.

What the court held. An expert's opinion that every exposure to asbestos contributes to causing mesothelioma, without reference to the specific facts of the plaintiff's exposures, is not reliable under Rule 702 and Daubert and is inadmissible as specific-causation testimony.

Issues decided: Causation, Expert Testimony.

The people and their exposure

• Michael Comardelle: mesothelioma, lung cancer; died

Who	Work	Where	When	Products
Michael Comardelle			1963-1979	Benjamin Foster 81-27 (Amchem)

The defendants

• Bayer CropScience, Inc. ("Amchem") (manufacturer)
• Pennsylvania General Insurance Company (insurer)

Other decisions in this case

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

• Comardelle v. Pennsylvania General Insurance Company (March 18, 2014). The court denied plaintiff Comardelle's motion to remand, holding that Westinghouse (joined by Foster Wheeler and GE) properly removed the case to federal court under the federal officer removal statute.
• Comardelle v. Pennsylvania General Insurance Company (November 3, 2014). The court granted all defendants' motions for partial summary judgment and dismissed with prejudice the family's claims for bystander (Lejeune) damages for watching Comardelle's illness and death.
• Comardelle v. Pennsylvania General Insurance Company (November 18, 2014). The court granted Avondale's (Huntington Ingalls') motion for partial summary judgment and dismissed with prejudice the plaintiffs' Louisiana Civil Code Articles 1821-1823 claims based on the insurance buy-back agreements.
• Comardelle v. Pennsylvania General Insurance Company (November 21, 2014). The court granted partial summary judgment to the Avondale executive officers and their insurers and dismissed plaintiffs' Article 2317 strict liability claims against them with prejudice.
• Comardelle v. Pennsylvania General Insurance Company (December 15, 2014). The court granted P2S, LLC's motions for summary judgment, dismissing with prejudice the plaintiffs' claims and the Avondale Interests' crossclaims against P2S, and dismissed P2S's alternative motion as moot.
• Comardelle v. Pennsylvania General Insurance Company (December 15, 2014). The court denied Union Carbide's motion to exclude plaintiffs' pathology expert Dr. Hammar and for summary judgment on causation, so plaintiffs' claims against Union Carbide continued.
• Comardelle v. Pennsylvania General Insurance Company (January 5, 2015). The court granted Amchem's (Bayer CropScience) motion and excluded plaintiffs' expert Dr. Hammar's "every exposure" specific-causation testimony, including as to Benjamin Foster 81-27, while allowing his diagnosis and general-causation opinions.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Thibodeaux v. Asbestos Corp. Ltd. (Louisiana Court of Appeals, 4th Circuit, 2008). The Louisiana Court of Appeal affirmed the summary judgment that dismissed Eagle Asbestos & Packing Company and its insurer OneBeacon, so the Thibodeauxs lost their claims against those two defendants.
• Zimko v. American Cyanamid (Louisiana Court of Appeals, 4th Circuit, 2005). The appeals court reversed the judgment against Tate & Lyle because workers' compensation exclusivity barred it, affirmed liability and the survival award against American Cyanamid, and cut the wrongful death award against American Cyanamid to 50% by allocating fault equally between the two companies.
• Torrejon v. Mobil Oil Co. (Louisiana Court of Appeals, 4th Circuit, 2004). The appeals court affirmed the trial court's judgment notwithstanding the verdict for plaintiff Christina Torrejon against Mobil Oil Company, including the $1.8 million general damage award, and refused to reduce Mobil's liability for the settling manufacturers' fault.
• Krik v. Crane Co. (U.S. District Court, Northern District of Illinois, 2014). The court granted the defendants' motions (Crane, Owens-Illinois, Marley-Wylain and ExxonMobil) to bar plaintiff Krik's experts from offering "Any Exposure," "Each and Every Exposure" and "Single Fiber" causation opinions, and denied Mobil's other requests to bar the experts' testimony about exposure at Mobil facilities.
• Anderson v. Ford Motor Company (U.S. District Court, District of Utah, 2013). The court granted Crane Co.'s renewed motion, joined by York, Honeywell, Goulds Pumps, Flowserve and Sepco, and excluded the plaintiff's experts' "every exposure" specific causation testimony, a ruling for the defendants over Arva Anderson.
• Smith v. Ford Motor Company (U.S. District Court, District of Utah, 2013). The district court granted Ford Motor Company's motion to exclude the testimony of plaintiff's expert, Dr. Samuel Hammar, finding his "every exposure" causation opinion inadmissible, which went against plaintiff Linda Smith.

Later decisions citing this one

13 later decisions in our library cite this one:

• Rost v. Ford Motor Co. (Pennsylvania Supreme Court, 2016). The Pennsylvania Supreme Court affirmed the judgment for the Rost estates against Ford Motor Company, holding that the causation testimony was proper and that, although consolidation with two other cases was error, Ford showed no prejudice.
• Chenet v. Colgate-Palmolive Co. (Louisiana Court of Appeals, 4th Circuit, 2023). The appeals court dismissed Colgate-Palmolive's appeal for lack of appellate jurisdiction because the trial court improperly certified the partial summary judgment on asbestos causation as final, and remanded the case to the trial court.
• Crane Co. v. DeLisle (Florida District Court of Appeal, 4th District, 2016). The appeals court reversed the $8 million verdict, directing entry of a directed verdict for Crane Co. and ordering a new trial on all issues, including damages, for R.J. Reynolds (as successor to Lorillard and Hollingsworth & Vose), because expert causation testimony was wrongly admitted.
• Bedford v. American Honda Motor Co., Inc. (U.S. District Court, Northern District of Mississippi, 2020). The federal district court granted American Honda Motor Co.'s motion for summary judgment and dismissed the Bedford plaintiffs' claims for lack of evidence that a Honda product caused Beverly Bedford's mesothelioma and death.
• Coffin v. Ametek, Inc. (U.S. District Court, District of Maine, 2020). The court denied Maine Central Railroad's and Honeywell's motions to exclude the plaintiff's expert witnesses Dr. Abraham (causation) and Dr. Ozonoff (state of the art), so the plaintiff Victor Coffin prevailed on the motions.
• Michel v. Ford Motor Company (U.S. District Court, Eastern District of Louisiana, 2019). The court denied Ford's and Cummins's motions to exclude or limit the expert testimony of Dr. Staggs, Dr. Finkelstein and Christopher Depasquale, so the plaintiffs' experts may testify.
• Schindler v. Dravo Basic Materials Company (U.S. District Court, Eastern District of Louisiana, 2019). The court excluded the specific-causation opinions of plaintiff's experts Dr. Harrison and Dr. Tarin as unreliable, granted summary judgment to defendant Dravo Basic Materials Company, and dismissed Schindler's Jones Act claim with prejudice.
• Barabin v. Scapa Dryer Fabrics, Inc. (U.S. District Court, Western District of Washington, 2018). The court granted in part and denied in part Scapa's two motions to exclude expert testimony: it barred DePasquale's numerical exposure range and the causation testimony of Drs. Smith and Cohen, but allowed the rest of Barabin's exposure and causation experts (Brodkin, Tarin with limits, Compton).
• Bell v. Foster Wheeler Energy Corp. (U.S. District Court, Eastern District of Louisiana, 2017). 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.
• Bell v. Foster Wheeler Energy Corp. (U.S. District Court, Eastern District of Louisiana, 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.
• Fish v. Air & Liquid Systems Corporation (U.S. District Court, District of Maryland, 2017). The magistrate judge granted in part and denied in part Ford Motor Company's motion for a protective order limiting the plaintiffs' 54 Rule 30(b)(6) areas of inquiry, largely for Ford, allowed the plaintiffs to submit narrowed topics, and denied the plaintiffs' motion to file a sur-reply.
• Bell v. Foster Wheeler Energy Corp. (U.S. District Court, Eastern District of Louisiana, 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.
• 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.

76 F.Supp.3d 628 (2015)

Michael COMARDELLE,

v.

PENNSYLVANIA GENERAL INSURANCE COMPANY et al.

Civil Action No. 13-6555.

Signed January 5, 2015.

United States District Court, E.D. Louisiana.

[*629] Gerolyn Petit Roussel, Jonathan Brett Clement, Lauren Roussel Clement, Perry Joseph Roussel, Jr., Roussel & Clement, Laplace, LA, for Michael Comardelle.

Samuel Milton Rosamond, III, Adam Devlin Demahy, Angela J. O'Brien, Taylor, Wellons, Politz & Duhe, APLC, New Orleans, LA, for Pennsylvania General Insurance Company et al.

[*630] ORDER AND REASONS

LANCE M. AFRICK, District Judge.

Before the Court is a motion[1] filed by defendant, Bayer CropScience, Inc. ("Amchem"), seeking "to exclude causation opinions regarding Benjamin Foster products based on the `each and every exposure' theory."[2] Plaintiffs oppose the motion.[3] For the following reasons, the motion is GRANTED.

BACKGROUND

Plaintiffs allege that decedent, Michael Comardelle ("Comardelle"), was "exposed to asbestos and asbestos-containing products manufactured, distributed, and sold" by defendants during the course of his employment from 1963 through 1979. [4] Plaintiffs allege, "As a result of these exposures to toxic substances, including asbestos, [Comardelle] contracted cancer, mesothelioma, and lung cancer, which was first diagnosed on approximately September 25, 2013."[5] Comardelle died on May 3, 2014, and his widow and children were substituted as plaintiffs.[6]

Among a myriad of other claims, plaintiffs allege that Comardelle was exposed to asbestos-containing "coatings, sealants, and mastics" manufactured, distributed, and sold by Amchem,[7] including an adhesive called Benjamin Foster 81-27.[8] Plaintiffs intend to call Dr. Samuel P. Hammar as an expert witness to opine that Benjamin Foster 81-27 was a substantial contributing factor to the development of Comardelle's mesothelioma.[9] Amchem moves to exclude or limit this specific-causation[10] opinion testimony, as well as any other expert testimony that relies on an "every exposure" theory.[11] LAW AND ANALYSIS

A. Daubert and Rule 702

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); United States v. Hitt, 473 F.3d 146, 148 (5th Cir.2006). Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in

the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the [*631] trier of fact to

understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

"To qualify as an expert, `the witness must have such knowledge or experience in [his] field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.'" United States v. Hicks, 389 F.3d 514, 524 (5th Cir.2004) (quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir.1992)). Additionally, Rule 702 states that an expert may be qualified based on "knowledge, skill, experience, training, or education." Hicks, 389 F.3d at 524; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (discussing witnesses whose expertise is based purely on experience). "A district court should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a given subject." Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.2009) (quoting Wilson v. Woods, 163 F.3d 935, 937 (5th Cir.1999)). However, "Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility." Id.; see Daubert, 509 U.S. at 596, 113 S.Ct. 2786.

The U.S. Supreme Court's decision in Daubert "provides the analytical framework for determining whether expert testimony is admissible under Rule 702." Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir.2002). Both scientific and nonscientific expert testimony is subject to the Daubert framework, which requires trial courts to make a preliminary assessment to "determine whether the expert testimony is both reliable and relevant." Burleson v. Tex. Dep't of Criminal Justice, 393 F.3d 577, 584 (5th Cir.2004); see Kumho Tire, 526 U.S. at 147, 119 S.Ct. 1167.

A number of nonexclusive factors may be relevant to the reliability inquiry, including: (1) whether the technique has been tested, (2) whether the technique has been subjected to peer review and publication, (3) the potential error rate, (4) the existence and maintenance of standards controlling the technique's operation, and (5) whether the technique is generally accepted in the relevant scientific community. Burleson, 393 F.3d at 584. The reliability inquiry must remain flexible, however, as "not every Daubert factor will be applicable in every situation; and a court has discretion to consider other factors it deems relevant." Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.2004); see Runnels v. Tex. Children's Hosp. Select Plan, 167 Fed.Appx. 377, 381 (5th Cir.2006) ("[A] trial judge has `considerable leeway' in determining `how to test an expert's reliability.'"). "Both the determination of reliability itself and the factors taken into account are left to the discretion of the district court consistent with its gatekeeping function under [Rule] 702." Munoz v. Orr, 200 F.3d 291, 301 (5th Cir.2000).

With respect to determining the relevancy of an expert's testimony pursuant to Rule 702 and Daubert, the proposed testimony must be relevant "not simply in the way all testimony must be relevant [pursuant to Rule 402], but also in the sense that the expert's proposed opinion would assist the trier of fact to understand or determine a fact in issue." Bocanegra [*632] v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.2003). "There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." Vogler v. Blackmore, 352 F.3d 150, 156 n. 5 (5th Cir.2003) (quoting Fed.R.Evid. 702 advisory committee's note).

B. Analysis

"[I]n a number of recent cases, plaintiffs and their experts have advanced the argument that every exposure to asbestos is a factor in producing their illness." See Joseph Sanders, The "Every Exposure" Cases and the Beginning of the Asbestos Endgame, 88 Tul. L.Rev. 1153, 1157 (2014). As summarized by other courts addressing the admissibility of similar opinions, the "every exposure" theory "posits that any exposure to asbestos fibers whatsoever constitutes an underlying cause of injury to the individual exposed." Krik v. Crane Co., 76 F.Supp.3d 747, 750, No. 10-7435, 2014 WL 7330901, at [*2] (N.D.Ill. Dec. 22, 2014) (emphasis in original); see also Davidson v. Ga. Pac. LLC, No. 12-1463, 2014 WL 3510268, at [*2] (W.D.La. July 14, 2014) ("Dr. Schwartz testified that the `every exposure' theory includes all exposures to asbestos as a cause of mesothelioma because there is no way to know which exposures caused it and which ones did not.").

Dr. Hammar's proposed specific causation testimony is an example of this "every exposure" theory. In his expert report, Dr. Hammar opines that "all asbestos fibers inhaled by an individual that reach the target organ have the potential to contribute to the development of lung cancer, mesothelioma, and other asbestos-related diseases."[12] At his deposition, he went further and opined that "all of the exposures that that individual had who developed mesothelioma, all of those would have contributed to cause his mesothelioma."[13] Accordingly, Dr. Hammar opines based on this "every exposure" theory that "if Comardelle was exposed to asbestos released from Amchem or Benjamin Foster adhesives, . . . those exposures [would] have been a substantial contributing cause of his disease."[14]

Amchem moves to exclude Dr. Hammar's testimony that Benjamin Foster 81-27 adhesive was a substantial factor in

causing Comardelle's mesothelioma. According to Amchem, this is an "every exposure" theory opinion which does not pass muster under Rule 702 or Daubert. Amchem criticizes as wholly unsupported Dr. Hammar's leap from the general-causation premise that every asbestos exposure increases the risk of mesothelioma,[15] to the specific-causation opinion that Comardelle's exposure to Benjamin Foster 81-27 [*633] necessarily caused or contributed to his mesothelioma.[16] Amchem also faults Dr. Hammar for failing to consider any facts or data specific to Comardelle's exposure to Benjamin Foster 81-27, or to compare or differentiate between the different alleged asbestos exposures at issue in this case.[17] In support of these arguments, Amchem cites several recent district court opinions rejecting substantially similar expert causation testimony based on the "every exposure" theory.

633

First, in Smith v. Ford Motor Co., the district court excluded Dr. Hammar's opinion that a plaintiff's exposure to brake dust caused his mesothelioma because "each and every exposure to asbestos by a human being who is later afflicted with mesothelioma, contributed to the formation of the disease." No. 08-630, 2013 WL 214378, at [*1] (D.Utah Jan. 18, 2013). The Smith court held that opinion to be inadmissible and "agree[d] with the growing number of published opinions from other courts that have reached a similar result: that the every exposure theory as offered as a basis for legal liability is inadmissible speculation that is devoid of responsible scientific support." Id. at [*2]. As the court in Smith succinctly explained, "Just because we cannot rule anything out does not mean we can rule everything in." Id. at [*3]. The court also noted the complete lack of "studies, reports, examinations, or data of any kind to show that the alleged dust that Mr. Smith allegedly breathed in. . . was sufficient to be a contributing cause, substantial or otherwise, to the development of the disease." Id. at [*4]; accord Anderson v. Ford Motor Co., 950 F.Supp.2d 1217 (D.Utah 2013) (following Smith).

In Davidson v. Georgia Pacific LLC, the district court likewise rejected a causation opinion based on the "every exposure" theory, concluding that the theory "is not testable and consequently cannot have an error rate, thus failing to satisfy two Daubert factors." 2014 WL 3510268, at [*5]. The court also faulted the expert for failing to rely on any data "that would show that any particular defendant's product actually caused Davidson to develop mesothelioma." Id.[18]

In Krik v. Crane Co., the district court rejected a specific causation opinion based on the theory that because an expert "cannot rule out that a single dose of asbestos causes injury. . . . any and all exposure to asbestos is necessarily harmful." 76 [*634] F.Supp.3d at 752, 2014 WL 7330901, at [*4]. The district court held that "This is not an acceptable approach for a causation expert to take" Id. Accordingly, the Krik court excluded the testimony because it was unreliable and because the experts "fail[ed] to base their opinions on facts specific to this case." Id. at 753, 2014 WL 7330901 at [*5].

634

In opposition, plaintiffs submit a number of orders from state courts apparently denying motions to exclude Dr. Hammar's opinions, albeit without any articulated reasoning or analysis.[19] The Court is unable to abdicate its gatekeeping function in this case solely because other courts in other cases have, for unknown reasons, declined to exclude Dr. Hammar's testimony. Accordingly, plaintiffs' citations have little persuasive weight.

The Court agrees with Amchem that Dr. Hammar's proposed specific causation opinions in this case are unreliable and inadmissible, essentially for the reasons articulated by the thoughtful opinions in Smith, Anderson, Davidson, and Krik. Although there may be no known safe level of asbestos exposure, this does not support Dr. Hammar's leap to the

conclusion that therefore every exposure Comardelle had to asbestos must have been a substantial contributing cause of his mesothelioma. The Court agrees that this "is not an acceptable approach for a causation expert to take." Krik, 76 F.Supp.3d at 753, 2014 WL 7330901, at [*4], and it is "precisely the kind of testimony the Supreme Court in General Electric Co. v. Joiner. . . observed as being nothing more than the `ipse dixit of the expert.'" Smith, 2013 WL 214378, at [*2] (quoting 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). This kind of blanket specific causation opinion is not based on or tied to the specific facts and circumstances of any of Comardelle's exposures to asbestos and it elides any differences or

nuances of duration, concentration, exposure, and the properties of the fibers to which he may have been exposed.[20] The Court is not persuaded that such a one-size-fits-all approach is reliable expert testimony.[21]

[*635] Plaintiffs, as the proponents of the testimony, have not established by a preponderance of the evidence that Dr. Hammar's specific causation opinions in this case are reliable. See Mathis v. Exxon Corp., 302 F.3d 448, 459 (5th Cir.2002). Instead of explaining how Dr. Hammar can reliably opine that Benjamin Foster 81-27 was a cause of Comardelle's

mesothelioma, plaintiffs refer cursorily to a broad array of cases, studies, and regulatory materials.[22] Suffice it to say, plaintiffs overstate or misstate the relevance of these sources.[23] None of those citations plug the impermissible gap in Dr. Hammar's reasoning from the general causation proposition that exposure to asbestos increases the risk of mesothelioma, to the specific causation opinion that in this case Comardelle's exposure to Benjamin Foster 81-27 was a cause of his mesothelioma giving rise to liability. See, e.g., Anderson, 950 F.Supp.2d at 1225 (excluding testimony despite plaintiff's citation to "numerous scholarly articles and scientific studies" because those materials were not specific to "the type of exposure Mr. Anderson had to Defendants' products"). Accordingly, the Court concludes that Dr. Hammar's specific-causation opinions as to Benjamin Foster 81-27 (and all other exposures at issue in this case), are an unreliable product of the "every exposure theory" and must be excluded.[24]

635

IT IS ORDERED that Amchem's motion is GRANTED. At trial, Dr. Hammar may not offer specific causation testimony based on the "every exposure" theory that Comardelle's mesothelioma was caused by any particular exposure to a defendant's product or premises, including Benjamin Foster 81-27. Dr. Hammar may opine regarding Comardelle's diagnosis of

mesothelioma and issues of general causation. To the extent that this order and reasons rejecting the "every exposure" theory as a basis for specific causation testimony implicates the admissibility of testimony by other expert witnesses, those issues will be addressed by separate order. No such testimony shall be elicited without a prior order of the Court and the parties shall edit Dr. Hammar's videotaped deposition to remove opinion testimony excluded by this Order and Reasons. [1] R. Doc. No. 407.

[2] R. Doc. No. 407, at 1.

[3] R. Doc. No. 447.

[4] R. Doc. No. 1-2, ¶¶ 6, 66.

[5] R. Doc. No. 1-2, ¶ 9.

[6] R. Doc. No. 100.

[7] See R. Doc. No. 1-2, ¶ 45.

[8] R. Doc. No. 407-1, at 1.

[9] See R. Doc. No. 407-1, at 1-2; R. Doc. No. 447, at 1-2.

[10] "`General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury.'" Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir.2007) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997)). Louisiana law recognizes this distinction. See, e.g., Zimko v. Am. Cyanamid, 905 So.2d 465, 485-86 (La. App. 4 Cir.2005) ("Alternatively, American Cyanamid contends that Mrs. Zimko's experts, at best, established general causation—that asbestos fibers a worker brings home can cause disease—not specific causation— that asbestos fibers from American Cyanamid's facility actually caused Kenneth Zimko's mesothelioma.").

[11] R. Doc. No. 407-1, at 1 & n. 1.

[12] R. Doc. No. 407-4, at 11-12 (emphasis added); see also id. at 17 ("[A]ll occupational and bystander exposures to asbestos above the concentration identified in the case-control epidemiology studies and within the latency period have the ability to contribute to the causation of mesothelioma, lung cancer, and other asbestos-related diseases.").

[13] R. Doc. No. 407-5, at 11 (emphasis added); see also id. at 12 (agreeing that "all of Mr. Comardelle's occupational exposures to asbestos were in fact contributing causes of his mesothelioma").

[14] R. Doc. No. 407-5, at 15.

[15] 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." See, e.g., Davidson v. Ga. Pac. LLC, No. 12-1463, 2014 WL 3510268, at [*1] (W.D.La. July 14, 2014).

[16] R. Doc. No. 407-1, at 7-8.

[17] R. Doc. No. 407-1, at 4-5. Amchem also moves to exclude the opinion because even if is reliable and admissible, it is "contrary to [Louisiana] law" and would not satisfy plaintiffs' burden of proof as to causation. See R. Doc. No. 407-1, at 9-12; see also Davidson v. Ga. Pac. LLC, 2014 WL 3510268, at [*5]-6 (excluding "every exposure" testimony on the additional basis that it is inconsistent with Louisiana tort law burdens of proof). The Court need not reach this issue at this time because the disputed opinion testimony is unreliable and inadmissible. The Court will address the applicable burden of proof with jury instructions, which will be consistent with the well-settled proposition that expert testimony is required to establish causation in a toxic tort case. See, e.g., LeBlanc ex rel. LeBlanc v. Chevron USA, Inc., 396 Fed.Appx. 94 (5th Cir.2010) (affirming district court's dismissal of Louisiana toxic tort claims on summary judgment after exclusion of plaintiff's causation experts); see also Burst v. Shell Oil Co., No. 14-109, 2014 WL 3893304, at [*2] (E.D.La. Aug. 8, 2014) ("Under Louisiana law, `expert medical testimony is required when the conclusion regarding medical causation is one that is not within common knowledge.'") (Vance, C.J.) (quoting Chavers v. Travis, 902 So.2d 389, 395 (La.App. 4 Cir.2005)).

[18] The court in Davidson also reasoned that the "every exposure" theory is inconsistent with a Louisiana plaintiff's burden to establish causation. See id. at [*6].

[19] R. Doc. No. 447, at 2-3; R. Doc. Nos. 447-2 to -4, -6 to -8. Plaintiffs submit one transcript from a hearing on a motion regarding Dr. Hammar's testimony which also offers little analysis. R. Doc. No. 447-5, at 10 ("I'm going to allow it all to go in. Let the Fourth Circuit deal with it.").

[20] R. Doc. No. 407-5, at 19. Indeed, Dr. Hammar seems to acknowledge that the "every exposure" theory is an "absolute" approach at odds with "practical" concerns such as the nature of a particular exposure to asbestos:

Q. Assume for me, if you would, that Mr. Comardelle testified that he drilled through some corrugated siding to run electrical conduit. A. Okay.

Q. Assume for me that he testified he did that a dozen times.

A. Okay.

Q. Assume that he testified that it took five to ten seconds for him to do that. And I want you to further assume, because he didn't know the answer to this, but I want you to assume that each time he did that the corrugated siding contained asbestos.

A. Okay.

Q. Do you have those assumptions in mind?

A. Yeah.

Q. In your opinion if he spent a dozen times five to ten seconds each time drilling through corrugated siding, so we're talking somewhere between 60 seconds and 2 minutes of drilling, in your opinion was that activity alone a substantial factor in causing Mr. Comardelle's mesothelioma?

. . .

A. Well, if you just looked at it from a practical—practical, I would probably say no. If you wanted to be absolute to say that everything counts, you would say yes.

R. Doc. No. 407-5, at 19.

[21] If the "every exposure" theory was a reliable basis for specific causation opinions, an expert witness would merely need to change a plaintiff's name and work history and issue the same report in every case. The Court notes that at one point in his report, Dr. Hammar erroneously refers to Comardelle as "Mr. Humphries." R. Doc. No. 407-4, at 11 ¶ 34 (emphasis added). Humphries v. One-Beacon American Insurance Co., No. 13-5426 (E.D.La. Aug. 13, 2013) is an unrelated asbestos case pending before this Court, in which Dr. Hammar has been retained to provide expert testimony.

[22] R. Doc. No. 447, at 3-15.

[23] For example, plaintiffs cite the Louisiana Fourth Circuit Court of Appeal's opinion in Thibodeaux v. Asbestos Corp. Ltd., 976 So.2d 859, 862 (La.App. 4 Cir.2008), and attribute to that court the holding that "`any exposure to asbestos above background is a causative factor in producing the disease.'" R. Doc. No. 447, at 4 (quoting Thibodeaux). In fact, the language quoted by plaintiffs was the Fourth Circuit's quotation of a party's position—a position which the Fourth Circuit rejected. See Thibodeaux, 976 So.2d at 863 ("However, contrary to what the Thibodeauxs allege, this Court, in Torrejon [v. Mobil Oil Co., 876 So.2d 877 (La.App. 4 Cir.2004)] did not hold that the standard in an asbestos case was that `any' exposure was sufficient to prove causation.").

[24] The Court emphasizes that this holding is based on the unreliability of Dr. Hammar's methodology. The Court expresses no opinion as to whether any of his specific causation conclusions might in fact be correct, or whether another qualified witness may offer reliable specific causation opinions in this case.

Sources

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